ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005126

Complaint for Resolution:

Venue: Ardboyne Hotel, Navan, Co. Meath

Date of Adjudication Hearing: 01/03/2017

Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

In accordance with Section 39 of the Redundancy Payments Act, 1967 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The Complainant was employed by the Respondent company as a security guard on a variable hours contract from the 13^th of June 2008 until the 24^th of February 2016. He is seeking to be paid redundancy entitlements. He filled a complaint with the Workplace Relations Commission on the 2^nd of June 2016.

Complainant’s Submission:

That he was paid €630 per week for working 40 hours. That he worked full time for the Respondent Company over the last 8 years where he worked as a security guard in the Johnstown site. The site closed down and the Respondent Company offered him an alternative location to work. This location was in Dublin and was on reduced hours. He drove to the site in question and he realised that he would not be confident driving in heavy traffic. He stated that he was not willing to take up a position on this site, as his age was a factor and he did not like driving in Dublin. The Respondent Company offered him a number of other sites in Dublin and Kildare to work in but he was unwilling to take up any of those offers as it did not suit him. He felt he had no choice but to resign from his employment. He asked for redundancy but the Respondent failed to give it to him. He thinks that this is unfair as he worked for the Respondent since 2008.

Respondent’s Submission:

The Respondent’s representative outlined the following submission;

On the 17^th of February 2016, the Complainant contacted the Human Resources officer stating that he was resigning from his position. A letter of resignation was received on the 22^nd of February 2016. The letter cited reduced working hours and increased travel expenses as the reasons for the complainant’s resignation. The Complainant also sought to be paid a redundancy payment. As a redundancy situation did not exist, the Complainant would not qualify for a redundancy package.

The Complainant had previously worked for the Respondent in a facility in Johnstown on the Naas Rd. and upon its closure was subsequently offered rostered work in another facility in Ballyogan. The Complainant consequently took certified sick leave and requested that he not be rostered for night work and/or that any new work should not involve a substantive commute. The Respondent Company duly acknowledges said requests and subsequently offered the Complainant rostered hours of day work in two sites that were reasonably close to the Complainants previous workplace. Both of these offers of work were rejected by the Complainant and cited as the justification for his resignation.

Disentitlement to redundancy Payment for refusal to accept alternative employment.

Section 15(1) of the Redundancy Payments Act, 1967 states

that an employee shall be disentitled to redundancy payment for refusing to accept alternative employment where

(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 termination of his contract,

(c.) The renewal or re-engagement would take effect on or before the date of termination of his contract, and

(d.) He has unreasonably refused the offer.

The Respondent Company would contend that it meets the above requirements.

The Complainant’s contract of employment specifically stated that ‘the hours and place of duty shall vary from week to week’. While the Complainant has been regularly working 40 hours per week in Johnstown, it was no longer possible for the Respondent company to maintain the same level of hours under the restrictions that the Complainant himself imposed. Not withstanding this, the Respondent continued to offer the Complainant hours of work to which the Complainant refused. It should be noted that colleagues of the complaint were also removed from the Johnstown site following its closure, were assigned hours at Ballyogan site with no complaint.

Furthermore, in regard to the Complainant’s objections over the commute to an alternative site, the Respondent company asserts that it tried within reason to facilitate the employee with a shorter commute. The Complainant was offered hours in a site situated no more than 10 mins away from the Johnstown Site yet the Complainant refused these hours. The extension of the commute by 10 minutes would not constitute a major change of which would qualify for a redundancy payment and the Complainant’s subsequent rejection constitutes a rejection of section 15(1) of the Redundancy Payments Act, 1967.

The Respondent Company would again reaffirm its position that it reacted in both a just and reasonable way in dealing with the Complainant. It would further reaffirm their position that this is not a redundancy situation and therefore no redundancy payment will be paid to the Complianant.

Findings:

The complainant decided to resign from the Respondent Company after the Johnstown site closed. He was offered a number of alternative sites to work in but he was of the opinion that they did not suit him. The Respondent behaved in a reasonable fashion in attempting to relocate the Complainant to an alternative position after the closure of the Johnstown site. The Complainant’s claim for a redundancy payment is not valid as he voluntarily resigned from his position and where the Respondent offered him alternative positions in the organisation.

Section 15(1) of the Redundancy Payments Act 1967 states

(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 termination of his contract, and

(d.) He has unreasonably refused the offer.

Decision:

Section 39 of the Redundancy Payments Act, 1967 requires that I make a decision in relation to this complaint.

Based on the evidence presented by the parties I find that this Complaint is not well-founded and therefore fails.

Dated:   17^th May 2017