Complainant

Respondent

Parties

Krzysztof  Wisniewski

Fohntechgroup

Representatives

  Self-represented

Internal HR Manager

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-00061164-001

23/01/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and the respondent’s Human Resources manager gave their evidence under affirmation.  The hearing was conducted with the assistance of a Polish language interpreter provided by the WRC.

The parties were offered the opportunity to cross examine the witness for the other party.

The complainant submitted that he was made redundant but was not provided with a redundancy payment to which he was entitled. He appealed the employer’s decision to the WRC.

He submitted that he was working at a client site in Dublin. He was told that he was being laid off and a week later was offered alternative employment at a client side in Limerick. He submitted that it was not reasonable to expect him to travel up and down to Limerick for work and that the employer should have provided accommodation for him. In the circumstances he refused the offer of alternative employment and was subsequently let go.

In evidence the complainant stated that he was living in Dublin and was working on a client site for more than two years. He stated that he was told he was being laid off on a short time basis and sought an alternative from the company in the Dublin area. He confirmed that he was posted to the Dublin location and was in receipt of a ‘lodge’ payment in respect of accommodation at all times.

He suggested that it was unreasonable to offer him an alternative job in Limerick as it would necessitate a commute of five hours per day. He stated he was looking for something within one hours drive time of where he lived.  He stated that his employer would not provide accommodation for him, merely providing him with an accommodation support payment.

He stated that he was entitled to a redundancy payment when the respondent laid him off.

There were no cross-examination questions.

The respondent submitted that the complainant was employed for more than two years on a Dublin client site. On 22 September 2023 the complainant was placed on short term layoff. Although they tried to place him in the Dublin region, the only available work they had for him was at a client site in limerick and accordingly he was offered that position 5 days later.

The respondent submitted that they are based in Tralee, County Kerry, and that the complainants contract indicates that he may be assigned to work in client sites throughout Ireland or abroad. The respondent submitted that the complainant was posted to Dublin and was in receipt of a tax-free accommodation payment, referred to within the company and on pay slips as ‘lodge’. This payment amounted to €161 per week.

The respondent submitted that the project that the complainant was working upon came to an end and he was placed on lay off. Although they tried to find a position for him in the Dublin region, the only available work they had for him was in Limerick. Accordingly, he was offered a posting to Limerick on the same terms and conditions, including a lodge payment. I was submitted that this offer was in accordance with Section 15.1 of the Redundancy Payments Act.

When the complainant refused the offer of alternative employment, the respondent submitted that it had no alternative but to let him go. As they had offered him alternative employment, and he had unreasonably refused it, he was not entitled to a redundancy payment.

In evidence the Human Resources manager noted that the company made every effort to try to find employment in the Dublin region as indicated as desirable by the complainant but at the time they had no alternatives. She noted that the company specialises in work on data centres and in the pharma sector and accordingly were not in a position to offer general construction work to the complainant. She noted that as they are based in county Kerry, their employment contracts note that employees may be required to work anywhere in Ireland or abroad and accordingly they pay a payment in relation to accommodation. She noted that they do not provide an accommodation service, nor do they find accommodation for employees. She noted that in the past they had one or two rooms near to their Dublin site for employees that they hired from abroad. This situation did not apply to the complainant.

Under cross examination, the witness confirmed that they told the complainant that they would look for an alternative in the Dublin region but that ultimately none was available. She noted that the only availability at that time was Limerick and currently they have availability in Cork and Limerick. She noted that if a position in Dublin or Kildare becomes available they would seek to engage the complainant but noted that they had nothing at that time or to date.

The complainant was let go following a short period of layoff.  He was offered alternative employment and when he did not take up this offer, he was let go on 28 September 2023.  The respondent decided that he was not entitled to a redundancy payment under the provisions of the Redundancy Payments Act, 1967 – 2014.  The complainant appealed the employer’s decision to the Workplace Relations Commission.

Section 7 of the Act outlines an employee’s general entitlement to a redundancy payment.  Section 7(1) states as follows:

(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.

Section 15 of the Act outlines the circumstances where an employee is disentitled to a redundancy payment for a refusal to accept an alternative employment where it is offered.  Section 15(1) of Act states as follows:

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.

It is not disputed that the project on which the complainant was working came to an end, nor is it disputed that he was placed on lay off as provided for in his contract of employment. It is also not disputed that the complainant was offered an alternative position on the same terms and conditions in Limerick. The respondent submits that the complainant unreasonably refused the offer of alternative employment.

The complainant submitted that it was not reasonable for him to drive five hours per day to and from his alternative employment. However, I note that the complainant was in receipt of an accommodation allowance for his posting in Dublin. In accordance with his contract his place of employment was Tralee, County Kerry and he was posted to Dublin.

In the circumstances where the complainant was being offered a tax-free payment towards his accommodation of €161 per week, in a location that was closer to the head office, than his previous posting, I consider that this offer of alternative employment was reasonable. On the basis that the complainant was in receipt of an accommodation allowance during his posting to Dublin, I do not consider that it was reasonable for him to refuse an offer of a posting to Limerick.  There is no onus nor contractual burden upon the employer contained in his contract to find alternative accommodation for an employee.

Having regards to the foregoing, I find that the complainant has unreasonably refused the offer of alternative employment. Accordingly, I find that the complainant falls within the provisions of Section 15(1) of the Act and is unsuccessful in his appeal against the respondent’s decision not to pay him a redundancy payment.

Having regard to all the written and oral evidence presented in relation to this matter, my decision is to disallow the complainant’s appeal of the decision of the employer not to make a redundancy payment.

Redundancy Payments Act – offer of alternative employment not accepted – not entitled to a redundancy payment