RP1040/2013, MN759/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                        CASE NO.

Deirdre Heavey          -appellant                                                              RP1040/2013      

                                                                                                                  MN759/2013

against

Casey Doors Limited -respondent

under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. N. O’Carroll-Kelly B.L.

Members:     Mr. L. Tobin

Ms. P. Ni Sheaghdha

heard this appeal at Dublin on 19th August 2014

Representation:

Appellant:       Ms. Karan O’Loughlin, SIPTU, Liberty Hall, Dublin 1

Respondent:    Mr John Barry, Management Support Services, The Courtyard,

                       Hill Street, Dublin 1

Background:

This case centred on the relocation of the company and the appellant’s refusal to relocate to the new premises.

Summary of evidence:

The respondent company is a door manufacturer which was located in Baldoyle, where the appellant resides. The appellant was employed from 1999 and held a position in the office, working three days per week. She had responsibility for payroll and accounts amongst other duties and was described as a “perfect employee” by the Managing Director of the company.

The Managing Director outlined to the Tribunal that he himself was employed by the company as a sales manager until he engaged in a buy-out of the company during 2013. This came about as a result of the previous owner intending to liquidate the company. However, the premises were sold by the previous owner in April and a new premises was needed. Eventually the Managing Director obtained suitable alternative premises in Balbriggan.

The staff of the company were notified of the takeover and relocation in September 2013 at a staff meeting. The appellant was not present and so the Managing Director contacted her by telephone to inform her of the changes. The appellant expressed to him that the new location might not be suitable for her.

The Managing Director did not agree that a redundancy situation arose as he was endeavouring to retain all staff including the appellant as she was a valuable member of staff with 14 year experience. He did not view the Balbriggan location as too far as the journey time was approximately 30 minutes as per a travel route planner and as stated by other employees. All of the employees transferred to the new location with the exception of the appellant.

The parties entered into written correspondence on the issue which was opened to the Tribunal. From the written correspondence the Managing Director thought the appellant was open to some discussion on the issue but yet she also continued to raise the issue of the distance to the new location. The appellant was asked to try the new location for a period of two months. In reply to questions from the Tribunal, the appellant stated she did not accept this offer as she did not think it was likely to be suitable for childcare reasons.

The contract of employment contained a clause regarding site relocation but there was not a signed contract for the appellant. It was the company’s position that the appellant was asked as part of her role to distribute this contract to all staff. However, it was the appellant’s evidence that she was asked to only distribute it to the hourly paid staff and as a member of the salaried staff believed it did not relate to her.

There was a dispute between the parties as to how often the appellant had driven to work when the company was based in Baldoyle. The appellant maintained that she drove to work only 50% of the time while the Managing Director believed that she drove to work 90% of the time.

It was the appellant’s evidence that she lived only a 10 minute walk from the company’s premises in Baldoyle and therefore she often walked to work or obtained a lift when her husband required their car for work purposes. The appellant’s husband gave evidence in this regard.

The appellant stated that to travel to Balbriggan by public transport would entail getting three trains or two buses and would take a considerable length of time. Due to family circumstances the appellant would have incurred child-minding costs as a result. However, even with having the use of a car she felt the distance was too much. She did not agree that the journey time was 30 minutes and stated that it was in fact 50 minutes.

The Managing Director believed the new location was accessible as it was based along the M1 motorway in the opposite direction to the bulk of traffic. Had the appellant raised the issue of additional cost or travelling time with him he would have considered flexibility on these issues if possible. The appellant stated in evidence that she believed the onus was on the company to

suggest inducements to her but she was not given any options.

The company did not employ someone to replace the appellant but rather shared the role among three members of staff including the Managing Director’s wife who stepped in but it was difficult to replace the appellant’s experience. The appellant has since gained new employment in the Baldoyle area which she obtained a number of weeks later.

Determination:

The Tribunal have carefully considered the evidence given during the hearing, the documents submitted and the legal submissions made.

The Managing Director of the respondent gave evidence that due to circumstances beyond his control the premises within which the respondent company operated had to move. A new location was secured in Balbriggan 28.6 Km from the old premises. The appellant was informed that the company would be moving to the new premises in October of that year. The appellant stated that due to transport and childcare difficulties she would not be able to travel to Balbriggan daily. Previously she could get to work by car or on foot. It was a 10 minute walk or a two minute drive. The new location required one of three options, bus, train or drive. She did not have access to a car daily and therefore driving was not a feasible option. If she travelled by bus she would have to leave her home at 6.20 am and get two buses. The train option also meant she would have to leave her home at 6.20 catch 3 trains and walk 20 minutes. She did not have childcare arrangements for such an early start.

Section 15 (1)

An employee who has received the notice required under Section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal -

The following is a majority decision of the Tribunal: The legal test to be applied is a subjective one. It is not what the employer found reasonable. It is only the employee’s subjective view that the Tribunal has to consider. The Tribunal by a majority decision find in all the circumstances that it was reasonable for the appellant to turn down the proposal to move to the new location.

The appeal under the Redundancy Payments Acts, 1967 to 2007, succeeds. The appellant is entitled to a redundancy payment based on the following criteria:

Date of birth:                         

Date of commencement:        18 January 1999

Date of termination:               31 October 2013

Gross weekly pay:                  €486.65

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

The Tribunal also finds by majority decision that the appellant is entitled to the sum of €1,459.95 under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, (being the equivalent of three weeks’ gross pay in circumstances where the appellant gained new employment during the six-week notice period).

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)