UD1080/2015 RP411/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIMS OF:                                                                                                 CASE NO.

Patrick Dunne - Claimant                                                                             UD1080/2015

                                                                                                                     RP411/2015

Against

Wiser Limited T/A Wiser Bins and/or Wise Recycling - Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2015

REDUNDANCY PAYMENTS ACTS 1967 TO 2014

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. K.T. O'Mahony B.L.

Members:     Ms M. Sweeney

                     Mr D. McEvoy

heard this claim at Cork on 7th December 2016 and 30th May 2017

Representation:

Claimant: Ms Carmel Best, Best & Co, Solicitors, 42 South Mall, Cork

Respondents: Patrick J. O'Shea & Co. Solicitors, 77 Main Street, Midleton, Co. Cork

The determination of the Tribunal is as follows:

At the outset the appellant withdrew his claim under the Unfair Dismissals Acts, 1977 to 2015 but continued with his appeal under the Redundancy Payments Acts, 1967 to 2014.

Having carefully considered the evidence the Tribunal finds that the terms and conditions of the alternative employment offered to the appellant were materially different and from an objective point of view did not constitute suitable alternative employment for the appellant. It was reasonable for the appellant to refuse the alternative position.

The Tribunal is satisfied that the nature of the new job was significantly different from the claimant’ previous job and that the hours of work were so different as to constitute much less favourable terms and conditions of employment from the claimant’ perspective. 

Summary of Evidence

It was common case that the company in which the appellant was employed from 11 May 1999 became a wholly owned subsidiary of the respondent in 2009. The appellant was employed as a skip hire driver by the subsidiary and prior to that by the former owner of the business, delivering and collecting skips. In mid-2015 the subsidiary closed down and all its employees including the appellant were transferred to the respondent. In or around the same time, through no fault of the respondent, its operations base changed from Cork city to Midleton. A letter from the directors to the appellant dated 16 June 2015 stated:

“We fully intend on keeping all the employees in jobs by transferring you to the respondent on 30^th June. We will honour all your existing terms and conditions where at all possible and your length of service with the business to date will be honoured.”

The appellant worked with the respondent for around two and a half weeks doing different duties including bin collections. The transport manager told him a bin run was being developed for him. He was having ongoing discussions with transport manager but the appellant felt he was being fobbed off. He drove a bin-collection truck for three or four days and worked with the driver of a small truck delivering bins to customers the rest of the time.

The appellant’s position was that there was a vast difference between his former role delivering and collecting skips and driving a bin collection truck. In the former the driver is in and out of the truck during the day and gets exercise whereas in the latter the driver sits in the one spot driving for up to twelve hours each day and gets no exercise. In the latter he found himself nodding off. In his former employment he worked from 8.30am to 4.30pm but in summer starting time was brought forward to 7.30am and reverted back to 8.30am in the autumn, whereas with the respondent his hours would be 4.30am to 4.30pm or any time up to 6.00pm. This change had a significant effect on his family life and he was seeing less of his family and his grandchildren. He was working longer hours for the same pay. Starting in Midleton at 4.30 meant getting up around 3.00am.

The appellant claimed that there was no reality to the respondent’s position that he could choose his own hours as a large number of bins have to be collected and if he started later he would have to work later into the evening and furthermore by starting early you avoid the school traffic. The move to Midleton would not be a problem for the appellant if the job was the same. The appellant did not accept the alternative employment with the respondent.

On 10 July 2015 the appellant’s solicitor wrote to the respondent notifying them that the appellant’s new terms and conditions were vastly different and sought the terms of his redundancy. The appellant resigned on Friday 17 July having given two days prior notice and sought a redundancy payment.

Determination:

Having carefully considered the evidence the Tribunal finds that the terms and conditions of the alternative employment offered to the appellant were materially different, less favourable and did not constitute suitable alternative employment for the appellant. It was reasonable for the appellant to refuse the alternative position.

Accordingly, the Tribunal finds that the appellant is entitled to a redundancy lump sum payment under the Redundancy Payment Acts 1967 to 2007.and makes an award based on the following criteria.

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

It should be noted that any payment made through the Social Insurance Fund is calculated based on maximum earnings of €600.00 per week.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)