Complainant

Respondent

Parties

Michelle  Coyle

Abtran

Representatives

Independent Workers' Union

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00069533-001

25/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00069533-002

25/02/2025

Background

Michelle Coyle commenced employment with Emovis on 1st November 2013, where she worked as a back-office agent assigned to the eFlow contract. Her responsibilities included customer emails, a range of administrative tasks, and other back-office duties. She was a reliable and longstanding member of the team, having worked on the eFlow account continuously for over 11 years.

Following her return from maternity leave in 2018, she resumed work in a part-time capacity, working a fixed shift from 9:45 a.m. to 1:45 p.m., Monday through Friday. These hours were essential for her childcare responsibilities and to maintain a work/life balance and remained in place for several years.

In September 2021, Abtran acquired the eFlow contract from Emovis and Ms. Coyle was offered the choice to either accept voluntary redundancy or transfer to Abtran under (Transfer of Undertakings Protection of Employment) regulations. She chose to transfer to Abtran after being assured that her existing role, including her duties and working hours, would remain unchanged and that the terms and conditions of her employment would be honoured in full.

However, in November 2024, Ms. Coyle was informed that her role was coming to an end. She was presented with two alternative roles.

She could remain in a back-office role but would be required to work evening shifts; or keep her existing part-time daytime hours but would need to move to a front office role, involving tasks for which she had no experience or training.

Neither option was suitable. The evening shift was incompatible with her family responsibilities, and the front office role was completely outside her area of expertise. Throughout her time on the eFlow account, she had exclusively worked in a back-office capacity and had not received any training in customer-facing duties, nor did she feel equipped to carry out that role. In effect, the proposed changes represented an entirely new position, not a continuation of her existing role.

Ms. Coyle clearly expressed her concerns to Abtran on several occasions and that she wished to remain in her current role and working hours. Despite her willingness to continue working under her original terms, Abtran insisted that her role no longer existed and continued to offer only the two alternative options.

Ms. Coyle went on sick leave in late 2024 until February 2025. Upon her return, she was again presented with the same two unsuitable options. At this point, with no indication that Abtran was willing to restore her original role or negotiate a reasonable alternative, Ms. Coyle formally requested to receive her redundancy entitlements.

Abtran has refused to acknowledge that a legitimate redundancy situation exists. And says that Ms. Coyle voluntarily resigned, and as a result, they have not provided her with either redundancy pay or her statutory notice entitlements.

The complainant gave evidence on affirmation.

She outlined that she had a role in customer relations but that there was no ‘voice’ contact. This was the basis on which she had accepted to transfer to the respondent following the transfer from her previous employer. She had been offered redundant but had been prevailed upon to e transfer on the basis that her role would remain the same.

The proposal put to her involved her working in the call centre.

The second option, while it did not change the nature of her work involved her moving on to shift work. While there had been sone adjustments to her contract in 2023, 2017 and 2019 these were only to the hours she was required to work.

She said that call centre work was very stressful, and she confirmed this by speaking to colleagues who did that work.

She was told that her job’ did not meet current business needs’.

She said that she told the company that the proposed roles were well outside her job specification and she had asked for other options

She said that she did not resign and did not want to lose her job.

Redundancy

The key issue in this case is that Ms. Coyle was assured her role would remain unchanged upon transferring to Abtran. For her to continue in her position, two core conditions needed to be upheld: her fixed part-time working hours and her back office responsibilities.

These were fundamental to her continued employment. Ms. Coyle's part-time hours, from 9:45 a.m. to 1:45 p.m., were critical to balancing her job with her family obligations. A change to this schedule would have had a significant and disruptive impact on her personal life. This arrangement had been in place for years and was integral to her ability to carry out her role.

Equally important were the duties of the job. Ms. Coyle had spent over a decade working in back office functions. She had no experience in front office or customer-facing roles and had never been trained to perform those tasks. Asking her to take on front office duties amounted to offering her an entirely different job, one that did not match her skills, experience, or professional background.

Faced with unsuitable alternatives, Ms. Coyle reasonably concluded that her original job had been made redundant. Despite her repeated efforts to resolve the matter, and her willingness to continue working in her original capacity, the company did not agree, and she was made redundant.

It is incorrect for the company to now claim that she resigned voluntarily, and this is an attempt to deny Ms. Coyle her redundancy entitlements.

Minimum Notice

As this is a case of genuine redundancy, Ms. Coyle is entitled to statutory redundancy pay and notice under the relevant legislation. Abtran has failed to meet these obligations. Ms. Coyle has not received her redundancy payment, nor has she been compensated for her notice period, in breach of the Minimum Notice and Terms of Employment Act 1973. Ms. Coyle is entitled to 6 weeks' notice as per the legislation.

This is clearly a case of redundancy, not resignation. Ms. Coyle should be awarded her full redundancy entitlements and notice period pay in accordance with the legislation. She acted in good faith throughout and made every effort to continue working under her original terms. The company refused to negotiate with her and insisted that her role as it stood must cease.

The respondent was seeking to streamline its functions, and the complainant was one of the employees affected by this.

On July 17th, 2024, her line manager offered the options of remaining in her existing job, but undertaking it on the basis of shift work, or moving into a call centre setting.

The complainant responded on the same day saying that her role was a back office role and not in a call centre.

The respondent outlined relevant clauses within her contract of employment which the complainant did not dispute.

Likewise the complainant did not make any submission offering evidence of a pre-existing arrangement or contractually binding document, but she nonetheless stridently resisted the proposal.

Her line manager invited her to submit a grievance, and she did so on July 24th, but this was not pursued. She logged off later that day saying that she was feeling overwhelmed and the following day was invited to attend a grievance meeting.

However she went sick on July 29th, 2024, and did not return until February 4th, 2025.  Before returning sha had advised the respondent that she was fit to return to work and that she would be returning to her regular duties and the same roster as she had been on before she went on sick leave.

There was a return to work meeting on February 4th, 2025, and from the following day until February 11th  the complainant worked her normal pattern as the respondent wished to allow her to readjust following her period of sick leave.

She again went sick until February 14th [although this is disputed by the complainant] and told the respondent that she considered herself to be redundant and no longer an employee. On February 14th  she emailed the Head of Operations saying that she had been informed that her role had been made redundant.

 Later that day she followed up by saying that as she had not heard anything from the respondent and considered her role to have been made redundant that that would be her last day at work.

There was further correspondence in the course of which the complainant stated that she had not resigned but had been made redundant but on February 21st  the respondent emailed her saying that she had not been made redundant. She was told she had to pick one of the two options by February 24th  otherwise she would be deemed to have resigned her employment.

On that same day the complainant replied stating that she had been promised by the respondent that her terms and conditions would remain the same and that the alternatives she was being offered were not suitable. She said she wanted her statutory entitlements.

The respondent contacted her again on February 24th, offering to discuss working arrangements and in further correspondence confirmed that she had not been made redundant.

The  respondent submits that there is no entitlement to redundancy in circumstances where it did have work for the complainant, but she chose not to take the alternative options offered and ultimately resigned.

At no stage which she told that she was redundant. The respondent says that the complainant  fails to meet the requirements of redundancy situation and is not entitled two redundancy payment. The respondent undertook a detailed analysis of the alternative options (submitted in evidence)  and concluded that there was no significant difference between these and complainant’s current role.

Regarding the complaint under the Minimum Notice and Terms of Employment Act, 1973 the respondent again relies on the fact that the complainant resigned from her position.

Miss Lauren Wynn gave evidence on affirmation. The witness is the Operations Manager of the respondent, and she stated that the role was never redundant and was simply a change in the manner in which the role was delivered.

In reference to the two options, option one would have allowed the complainant to remain on her existing rota while option 2 did not involve a significant change. The change to working in a call centre is not a drastic one as it involves the same product knowledge.

She confirmed that there was no issue with the complainant’s performance and in response to a question as to why the complainant was given an ultimatum in relation to responding within a specific time, she said that this was decided by her manager.

Ms Ava Fitzgerald gave evidence on affirmation.  She has been  Senior HR Business Partner with the respondent for eleven years. She repeated that the role was not made redundant but that the complainant had resigned from her position.

The facts are well set out in the submissions above and the sequence of events is not in dispute, although the interpretation of them certainly is.

The issue of a change in the complainant’s working arrangements was first raised in July 2024. She was offered two options.

In summary, these were that she would continue in her current role; a role she has been carrying out since she joined the predecessor company in 2013 but, critically, as it turns out, that she would be required to undertake a pattern of shift working.

She says that this was not compatible with her family obligations and specifically adds that at the time of the Transfer of Undertakings for the previous entity, she was persuaded to withdraw her decision to accept redundancy terms by a specific commitment that she would remain doing her previous job.

The key characteristic of that role was that she was not required to have direct interaction with customers on the telephone and all her work was done by email.

This is also relevant to the other option offered to her,  which was to accept deployment to a ‘call centre’ type setting in which she would interact with customers on the telephone.

The respondent submits that the complainant’s role was not redundant and that these were reasonable alternatives. (Interestingly, it did not argue that her role was redundant and that these were reasonable alternatives, as it might well have done).

On the first occasion when the matter was raised in July 2024, it had a very serious impact on the complainant’s health resulting in a prolonged absence on stress related sick leave. On her return, the issue presented again.

The complainant was ultimately advised that she had to make a very quick decision about her acceptance of either of the options referred to above; in fact, to do so by close of business on the following day. She interpreted this as meaning that she had been made already been made redundant and advised the company that she regarded the day of the ultimatum for her response as her last day of work.

The respondent regarded this as a resignation and says that no complaint of redundancy arises.

The starting point in unravelling this is the proposed re-deployment of the complainant to one or other of the alternative roles, and whether as she submits, this was a de facto rendering of her previous position redundant.

Each of the options needs to be looked at separately.

One of them, (let us refer to it as Option 1) involved no change in the substance of her job content. However, it did require her to undertake shift work which would have represented a very significant change in her pattern of work and also have a major impact on her role as a carer for her children.

A simple enough question arises here.

Can a job with no requirement to undertake shift work be regarded as the same job as one with a shift requirement even if the substance of the role is the same?

Picture a job applicant who is told s/he is successful at interview but then advised for the first time at interview that the job involves shift work. Would the applicant regard that as being the same job as they applied for?

More specifically, may an employer unilaterally, and without consent alter a contract of employment to require a worker to undertake shift working? I address these questions below.

As for the second option (Option 2), the position here is clearer in respect of the substance of the role.

It was significantly different to the complainant’s previous role. She gave evidence of having had this confirmed to her by co-workers who were in that role. In any case it is not difficult to imagine the stress associated with work in a call centre, especially these days.

Add to this the long experience of the complainant in a role which did not involve personal contact with the public and her acceptance of continuing to work after the TUPE exclusively on that basis. (This is not to say that a transferred worker may never have their role changed post TUPE, but it is subject to the normal procedural principles that then apply.)

So, this gives rise to two aspects of the question ‘was the complainant’s role redundant?

This is most easily answered in relation to Option 2.

I find that the proposed assignment to a call centre role was a very significant change and not a variation of the complainant’s previous role as suggested by the respondent.

The respondent cannot sustain its case that the complainant’s role was not redundant in the context of this option.

Indeed, in her evidence the complainant stated that she had been told that her position no longer met ‘business needs’ which would normally be sufficient to fulfil the definition of a redundant post.

Taken with the somewhat euphemistic phrase in the respondent’s own submission to the hearing that it was ‘streamlining functions’, the situation begins to acquire some of the change characteristics necessary to define a redundancy by reference to Section 7 of the Redundancy Payments Acts 1967 to 2007.

 The following categories (inter alia) are identified as constituting a valid redundancy situation and where a dismissal occurs "wholly or mainly" from one of such situations:

1. Where an employer has ceased or intends to cease to carry on the business for the purposes for 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. Where the requirements of the business for an employee to carry out work of a particular kind, in the place where he was so employed, ceased or diminished, or are expected to cease or diminish.
3. Where an 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.
4. Where an employer has decided that the work for which the employee has been employed should henceforth be done in a different manner for which the employee is not sufficiently qualified or trained.

It will be seen that the manner in which this was described to the complainant, (and to the hearing) could be said to fit into one or more of these categories; 2 and 3 in particular.

Further, in my view the respondent would not have succeeded in arguing that this was an offer of reasonable alternative employment even if it had conceded that the post was redundant.

Both parties referred to Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156 in which the Tribunal, when considering similarly worded provisions of English legislation, indicated 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”.

This decision was followed in Cinders Ltd v Byrne RPD 11/2018 where the Labour Court found that a complainant's refusal to transfer from the Merrion Centre in Dublin 4 to the Blanchardstown Centre in Dublin 15 was not unreasonable but that her refusal to transfer to Wicklow Street in Dublin 2 was unreasonable given that she would not have suffered any disadvantage in relation to her commute between her home and place of work had she accepted that option.

I have also considered Cosy Tots & Co. Ltd v Bernadette Conn [2021] RPD219, the complainant, refused to move in her role as a Cook from Rathfarnham, Dublin 14 to a role in another of the company’s premises alternative role in Barrow St, near Dublin city centre. 

The complainant said this alternative was unsuitable because of increased commuting time and how it impacted on her carer responsibilities. The complainant sought to be made redundant.

 The respondent argued that the alternative position with the same terms and conditions met their obligations to the complainant under the Act.

The WRC found that a redundancy situation arose as a result of the change of location and the matter was appealed to the Labour Court.

The Court held, having regard to the reality of travelling in the city, the issue was less about the physical distance between the two locations, Rathfarnham and Barrow St, than about the time it would take to travel that distance. The Court decided that it was reasonable for the complainant to decide that the offer made was not suitable alternative employment. Therefore, it held that the complainant was entitled to a payment under the Redundancy Payments Act.

In general, the authorities indicate quite a low bar in respect of when an employee may object to alternative employment and the application of these criteria to this complaint greatly favour the complainant (although the respondent did not accept that this was a redundancy situation)..

While the position is somewhat different with Option 1 in that the job content did not change, I refer again to the two examples above, the prospective job applicant being landed with news of shift working at a job interview or the worker being asked to embrace shift working without consent.

Shift working is not a minor variation in a worker’s conditions. It generally attracts additional premium payment, for example, (of which there was no mention in this case), but this is one measure of the contrast between shift and non-shift working.

In summary, I find that it cannot be regarded as the same job where there is a fresh requirement to undertake shift working as it would be without such a requirement. Specifically, I find that it would not be reasonable, in the absence of specific contractual authority, for an employer to require a worker to undertake shift working without initially seeking consent to do so

The complainant did not help the situation by concluding that her job had already terminated and leaving her employment, although it is hard to blame her for doing so. Indeed, having regard to the pressure applied to her, she might well have had a case for constructive dismissal as an alternative to this complaint on these facts.

The decision of the respondent to impose a twenty-four hour deadline for its ultimatum was quite reprehensible and unfair having regard to all the circumstances, and in particular the known impact it had on the complainant the previous July.

The employer seemed to believe that by simply repeating the mantra that the position was not redundant that this made it so. It arbitrarily dismissed the complainant’s objections in that regard.

While it was put it to the complainant in cross examination that she might have worked under protest, an equally, if not more reasonable alternative was for the respondent to delay implementation of any change until an internal consultation, or any grievance process had been exhausted. The complainant was very clear in her mind as to the unsuitability of both options and a ‘trial period’ was unlikely to have changed that.

It was clear from the evidence of Ms Wynn that this decision was taken by the line management, and it seems like a simple assertion of its authority for its own sake, and the implication, or in any case the effect was that there was a degree of indifference to the merits of the complainant’s case or its impact on her.

For that reason and having regard to all the facts it would be entirely inequitable to deny the complainant a remedy on the basis of her purported resignation when this was a consequence of an unacceptable degree of pressure by the respondent .

And this is particularly the case in circumstances where I find that her position was redundant and neither of the options put to her represented offers of reasonable alternative accommodation for the reasons set out above.

In summary, I find that the complainant’s position was, as a matter of fact, redundant and that she is entitled to a redundancy payment based on her continuous service with the respondent and its predecessor.

I also find that she is entitled to payment of Minimum Notice. The complainant had a total of twelve years’ service which entitles het to six weeks’ notice.

I uphold complaint CA-00069533-001 under the Redundancy Payments Acts 1967-2014 and award her a redundancy payment based on her continuous service with the respondent and its predecessor.

CA-00069533-002 under the Minimum Notice and terms of Employment Act, 1973 is well founded and the complainant is entitled to her statutory notice payment based on her twelve years’ service in the amount of six weeks’ pay.

Redundancy, Alternative employment