ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002887

Complaints for Resolution:

Date of Adjudication Hearing: 25/08/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, Section 6 of the Payments of Wages Act, 1991 and Section 39 of the Redundancy Payments Acts, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

Claim under Redundancy Payments Acts CA 00004014-001

The complainant commenced work as an Office Administrator in 2006 on 20 hours per week contract. In or around 2007, her hours were increase to 24 hrs .It is the complainants case that these hours fluctuated around getting the work done and often involved an excess of 24 hrs per week. The contract of employment did not have a mobility clause proviso. In or around January 2016, the respondent moved to a new office .This office was not proximate to the complainants home and it was no longer possible for her to work at the new location .The complainants representative cited the authority of an English EAT case in Bass Leisure ltd v Thomas [1994] IRLR 104.where a redundancy payment was permitted based on a new work location 20 miles apart.

The complainant sought a redundancy payment under Section 7(2) (a) of the Acts. This was refused by the respondent and instead a proposed work pattern of varied or reduced hours was offered. This did not provide a resolution as reducing attendance would not accomplish the work required.

The complainant is seeking a lump sum payment of statutory redundancy.

Claim under Payment of Wages Act CA-00004013-001

The complainant was on sick leave for four weeks in January 2016. The contract states that sick leave is payable at the discretion of the respondent .The complainant cited precedent of the company paying a colleague of the complainants for a twelve week sick leave period in 2014. The complainant is seeking €1,964.08 nett in payment for sick leave.

Evidence of the Complainant

The complainant gave a short account of how she had enjoyed her job. She submitted that an air of uncertainty had followed the decision by the company to commission the external report. She confirmed that she had inputted a copy of her role into the report but was not interviewed or given a copy of the report. She described some pressure in trying to get her work done in the nominated hours and more work was expected following the appointment of the new General Manager.

She confirmed that she had not raised the issue of her unease with the proposed move before November 20, but felt very stressed when she thought about it .She had always combined a Counselling role in the evenings with her position at the respondent company and worried about getting to that in time .She had always been able to leave Office A by 4.30pm and she could skip her lunch to get to counselling appointments .The complainant reviewed the transportation logistics in line with having to now access her workplace through a tunnel blackspot and found it un doable . She sought redundancy.

She undertook one trial run in April 2016 and even in the afternoon it took her 35 minutes. The complainant described a sense of isolation and referred to an episode of conflict with Mr CS in 2014.

Respondent’s Submission and Presentation:

The respondent company was founded in 2001 and was facilitated by an umbrella body in the provision of office space on the outskirts of the city . The company is limited by guarantee and operates on a principle of not for profit.

In 2013, the respondent commissioned an external review to assist in the development of the organisation. It is the respondent’s case that the complainant was involved in this review process. The report recommended that office space should be relocated. At that time, the complainant lived within a 5 km radius .By the 11^th May, 2015, there were three employees at the company.

Mr GM –general manager commenced May 2015

The complainant

Mr CS- company secretary

Mr GM began to source a new office and the complainant maintained his diary of office viewings. The respondent submitted that Mr GM discussed possible locations with the complainant and she responded “I will go anywhere to keep my job”. Many locations and offices were evaluated until a new office was located .The lease was signed on 29 September, 2015 with an eventual open day of January 4, 2016.

The new office was located 15.2km from the complainant’s home. This was a resultant change of 10.2 km .The complainant had a parking space in the new location and she had always driven to work. She seemed happy and prepared for the move as demonstrated by her preparation for the relocation.

On 20 November, 2015, Mr GM had a conversation with the complainant, where she queried how her role might change after the move .The company expected the job to remain the same and told her that there would be some flexibility with start and finish times if she needed. The complainant confirmed that she was happy in her existing role. The next day, the complainant applied to be made redundant and was refused. She made a further request two days later and when she was refused intimated that it was her intention to leave anyway with or without a redundancy payment. The complainant was advised to take some time to consider her decision and together they planned to review the situation after December 2^nd.

The requests for redundancy persisted without progression .On 17 December, the complainant organised December payroll for herself, together with her Christmas voucher, cleared her desk and did not return to work .Further requests for redundancy followed and on December 21^st, the claimant reported sick, with work related stress, (21^st December-1^st February 2016) .The company continued to re-iterate that the complainants job was there for her save for the change in office location. On December 21,the respondent receive an email from the complainant stating that she had” other commitments” which prevented her from working in the new location but did not expand on this or offer any suggestions on how the respondent could facilitate her .

The differential in the journey time was identified by the respondent as an additional 15 mins involving an extra 10 km. The respondent sought to meet with the complainant to discuss options to make things work, such as reduced hours at same pay and a travel allowance was even considered .Despite the exchange of correspondence, the complainant did not return to work, neither did she submit sick certs as requested .The complainant did not avail of the offer to meet with the respondent.

Eventually, by mid April, 2016,the respondent considered that the complainant had abandoned her job .They submitted that the complainants refusal to relocate was unreasonable as she had not submitted any evidence or demonstrated why the relocation was not viable for her .

The respondent submitted that pursuant to section 7 of the 1967 Act, as amended, there must be a dismissal for a redundancy to arise .The burden of proof rests with the complainant to establish a dismissal as the respondent submitted that a dismissal did not occur.

In addition, the respondent submitted that section 15(2) of the Act disentitled the complainant to a redundancy payment by virtue of her unreasonable refusal to accept alternative employment .The complainant refused to engage.

The respondent relied on the authorities

Dillon V Kavanagh Construction RP 422/2006, where the EAT determined that a claim for redundancy failed when a new offer of work constituted suitable alternative employment and was unreasonably refused by the complainant

Employee v Employer UD 1968/2011 This case involved a relocation to a warehouse 5 miles down the road from the previous base .The EAT found in favour of the employer “It is a well established legal and factual principal that from time to time employees might be expected to change workplace location during the course of employment and that this fact cannot and does not give rise to redundancy where employees cab reasonably be expected to get to their new destination “

Anna Essalhi v Fitzers Holdings ltd RP94/2014

A claim under the Redundancy Payments Acts failed when the complainant refuse to accept a proposed alternative workplace.

The respondent sought to draw an analogy to the reasonable measurement of 45 km in the case of public sector relocations.

They summarised the travel times as:

Home to Office a   5 km and 13 minutes travel time

Home to Office B   15.2 Km   and 18 minutes travel time

Office A to Office B 21.9 km   and 21 minutes.

These did not render the change of Office location to be unsuitable .The complainant was offered enhanced arrangements to facilitate her transfer to the new location. The respondent submitted that the claim must fail.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 6 of the Payment of Wages Act requires me to make a decision in the case. Section 39 of the Redundancy Payments Acts, 1967 requires me to decide on that claim.

CA-00004014-001 Payment of Wages Act, 1991 claim:

The complainant submitted medical certificates 21 st December 2015 -31^st January 2016.She commenced new work in February 2016.She administered her own pay to month end of December 2015 and sought application of the discretionary sick pay scheme for the 4 week period of January 2016. The company confirmed that a previously employed manager had received sick pay from the company; however, the circumstances were reported as markedly different. The manager had placed himself at the disposal of the company and he effectively worked from home. The manager in question attended the hearing and did not dispute this contention.

I have reviewed the clause on “sick leave “on the contract of employment.” Sick leave is payable at the discretion of the company “.

Section 5 (1) of The Payment of Wages Act states that an employer shall not make a deduction from the wages of an employee unless-

1. The deduction is required or authorised to be made by virtue of any statute or any instrument made under statute.

Section 5 (6) (b) Where none of the wages that are properly payable to an employee by an employer on any occasion are paid to the employee, then except in so far as the deficiency or non payment is attributable to an error of computation, the amount of the deficiency or non payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

In the instant case, the complainant initiated payment for the first period of sick leave in December 2015. I did not hear evidence on an authorisation process. On 18 February, she enquired about payment for sick leave. I have given consideration to the evidence adduced by the respondent on the episode of sick leave in 2014. While I can see an inequity in the approach adopted by the company, I am mindful of the observations in an English wrongful dismissal case, where a discretionary bonus question arose:

“It is pertinent to observe that, in cases of this kind, the implication of the term is not the application of a "good faith" doctrine, which does not exist in English contract law; rather is it as a requirement necessary to give genuine value, rather than nominal force or mere lip-service, to the obligation of the party required or empowered to exercise the relevant discretion. While, in any such situation, the parties are likely to have conflicting interests and the provisions of the contract effectively place the resolution of that conflict in the hands of the party exercising the discretion, it is presumed to be the reasonable expectation and therefore the common intention of the parties that there should be a genuine and rational, as opposed to an empty or irrational, exercise of discretion. Thus the courts impose an implied term of the nature and to the extent described.” Cantor Fitzgerald International V Horkulak [2004]EWCA Civ 1287

The EAT considered a question of a discretionary bonus in Devlin v ESB [2015]26E.L.R.278, they determined that a discretion was not unfettered and must be exercised in line with reason.

In the instant case, I find that there was an onus on the complainant to address the question of paid sick leave directly with the company consistent with the period of sick leave. This did not occur. Instead, it was referred to by email in mid February, 2016, where the complainant contended that the pay was “properly payable “in line with the precedent established at the company .I find that there was insufficient engagement on this issue from the submission of the first certificate .This prevented a genuine and rational exercise of discretion, therefore I must find that the complaint before me is not well founded. I find that the respondent did not bear a contractual obligation to pay the complainant sick leave for the four week period claimed and consequently, Section 5 of the Act was not breached. Devlin applied.

CA-00004014-001 Redundancy Payments Act 1967 claims.

A Redundancy situation is defined in Section 7 of the Act.

General right to redundancy payment.

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

………

In the instant case, the company had developed an ambitious plan to move to a stand alone position in their part of the market. Having read the report commissioned, it focussed largely on the stakeholders and the augmentation of a General Manager to spear head that change. It was clear to me at the hearing that the company focussed on the implementation of the report and saw the new office very much as a first step in that process. I understand that commercial imperative.

However, in this case, I have reviewed the position as submitted by the complainant and find that there was a growing sense of isolation experienced by the complainant at her work from 2015. I appreciate that the company made every effort to reach out to her to encourage her to travel with the company and were somewhat mystified when she would not go.

I find that the complainant may well have taken matters into her own hands when she went on sick leave in mid December, however, sometimes; sick leave is a place of sanctuary and safety. I am satisfied that the complainant did experience stress trying to work out if she would transfer, she kept this largely to herself until the email exchanged commenced in earnest from January 2016.

I have again consulted the contract and note the lack of mobility clause, however, I have also considered the respondents cogent case law on reasonable offers unreasonably refused by complainants, thus negating claims for redundancy.

In this case, I am struck by the earnest disclosures of the complainant. The proposed move was not something she could countenance and she was not heard on that central point. The issue for me to decide, therefore, does that contention marry itself to a redundancy situation as provided for in Section 7 of the Acts?

The company has an exciting future, but nonetheless made a decision to cease to carry on the business in the place where the employee was so employed. They did not dismiss the complainant and I must now decide whether it was reasonable for the complainant to consider herself dismissed.

The prospect of a twice daily commute via an infamous travel blackspot replacing an uncomplicated short commute to work would be daunting for most people; however, that is not the full story here. I find that that the complainant had a growing sense of isolation from the company following the release of the development report. Her job as she knew it changed and bearing in mind the hallmarks of Redundancy decided in St Leger V frontline Distributors Ireland ltd [1995] ELR 160 of impersonality and change, I find that the complainant was unable to manage that change and due to her stand alone role in the company, this added to her justifiable sense of isolation.

I note the contention that the offers of the respondent were couched in reasonableness as provided for in Section 15 of the Act, but based ultimately impacted largely on the complainant due to the location of her home and pre ordained commitments.

I find that the complainant is entitled to the protection of 9(1) (c) of the Act in these unique circumstances:

 Dismissal by employer.

9

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.

I find that the employer ceased to carry on the business where the complainant had been employed for 10 years .I find that they gave insufficient regard to her rationale for not participating in the relocation, inclusive of not linking the reported sick leave to the logistics of the move. I appreciate that the complainant may well have benefitted from representation during the proposed relocation as it was a lot to take in for one person. However, based on the circumstances of the case, I find that the complainant is entitled to a lump sum redundancy payment under Section 7 (2)(a) and 9 (1)(c) of the Acts.

Date of Commencement: 21 March 2006

Date of Termination:         31 December 2015

Gross Weekly Wage:        €511.92 (annual salary €26,620)

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

Patsy Doyle, Adjudicator.

Dated:   6 December 2016