ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005444

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 06/02/2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The Complainant was employed since October 22 2001.

The Complainant had an initial contract that stated his place of work as “Heath/Mayfield Motorway” and that changed to “sites around Ireland” in 2003 and did not state he had to work abroad.

The Complainant understood that his contract was limited to the Republic of Ireland and that he would not be expected to work outside the Republic of Ireland without his express consent to same.

The Complainant had an exemplary record and worked in numerous sites around the Republic of Ireland.

The Complainant worked outside the Republic on two occasions and he realised this was an exceptional request by the Respondent and he had no personal circumstances that prevented him from doing so at the time.

In 2009 he was approached to work in Poland by the Respondent and he declined without sanction.

The Complainants mother had lost her long term partner in 2013 and the Complainant had a duty of care to her.

The Complainant worked in Norther Ireland in January 2014 for a three week period but understood this to be a one off and that it was a short period of time and that he would not be required to work outside the Republic of Ireland again.

The Complainant was informed the contract in Tyrone was for 8 months and the Respondent knew he could not go there for personal reasons and the Complainant told his Manager he was not contractually obliged to work in Northern Ireland.

The grievance procedure was totally inadequate and when the Complainant asked what would happen if he did not go to Tyrone he was told he would get his P45.

The Complainant sought work with the company in Tipperary but was unsuccessful.

The procedure for dealing with the Complainants appeal was totally inadequate on a number of grounds.

The Complainant was not provided with this P45.

The contract does not state the Island of Ireland and Northern Ireland is a separate country and the Complainant was not contractually obliged to work in Northern Ireland and the Complainant was made redundant by the lack of work available to him in the Republic of Ireland.

The principle of “Contra Proferentum” should apply.

Respondent’s Submission and Presentation:

The Complainant was employed as a General Operative and worked throughout Ireland as part of his duties as diverse as Kildare, Dublin, Wexford, Limerick and Tyrone.

The Complainant maintains he was made redundant as he was asked to work in a site in Northern Ireland. He worked in Northern Ireland before including from February 2006 to November 2006 and from January 2014 to February 2014.

The Complainants contract of employment requires that he be available to travel to sires in Ireland in the performance of his duties. In many cases in the construction industry it is a requirement of your contract of employment that you are available to travel to sites throughout Ireland. The industry is mobile by its very nature and as one project comes to a completion staff may be transferred to sites some distance away from its original site.

The Complainant refused to travel to a site in Tyrone even though it was a condition of his employment.

The Respondent at no stage dismissed or made the Complainant redundant. It is simply a case that the Complainant could not travel to a site where there was work available for him.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Complainant brought a claim under Section 39 of the Act seeking a redundancy payment. The specific claim brought by the Complainant was as follows “Breach Terms of Contract amounting to Redundancy situation where no employment available to client within the Republic of Ireland as per his Contract. A letter was sent to his employer on 21 January 2016 to rectify and the matter was not resolved ultimately the complainant had to seek alternative employment.”

Clause 4 of the Complainants Contract of Employment states” ……you may be expected to work at various company sites around Ireland as determined by the Company from time to time”.

The core issue in this case is was the Complainant made redundant and/or did a redundancy arise due to a term of the Complainants contract being breached due to the “conduct” of the employer.

In this case the Complainant was offered work in County Tyrone, in Northern Ireland on approximately 7^th January 2016 for an expected eight month duration. He choose to reject this offer at the time primarily for personal reasons, mainly that he would be away from home during the week and have to travel four hours home on Friday evening and four hours back on Sunday evening. The Respondent wrote to the Complainant on January 20^th 2016 stating its belief that they were within their rights to ask the Complainant to work in Northern Ireland and stated “You have not reported for work so far in the location (meaning Tyrone) and if we do not hear from you within five working days from the date of receipt of this letter we will assume that you have left your employment with (the Respondent). The Complainant subsequently, through his solicitor on January 26^th 2016 stating “If you intended for our client to work outside of the jurisdiction of the Republic of Ireland, this should have been specifically stated in the Contract of Employment drafted by you and brought to our clients attention”. The letter also states “We have advised our client that it is reasonable for him to believe that he has been made redundant by your actions and where there has been a fundamental change to his working contract to such an extent that it is tantamount to being made redundant”.

The Complainant stated that in January 2016 he was told the only work available to him was in Tyrone and he did not wish to complete this work as it necessitated him being away from home during the week and with weekend travel on two day and this this not suit his personal circumstances. He also maintained that it was not part of his contract of employment to work outside the Republic of Ireland and that as that was the location for the only work offered to him that he was effectively redundant when the company did not offer him work in the Republic of Ireland.

The Respondent maintained that they were entitled to request the complainant to work in the North of Ireland as it was a part of his contract of employment. They also maintained that he was never made redundant and that he terminated his own employment. The Respondent advised that the job in Tyrone terminated earlier than expected. They wrote to the Complainant on March 7^th 2016 stating that they had secured a job in Dublin and asked that the Complainant reconsider his positon that he was redundant as there would be employment opportunities at that site and reiterated that the Complainants employment was not terminated by the Complainant.

The Respondent denied making the Complainant redundant at any stage and believed that they were within their rights, under the Contract of Employment, to ask him to work in Tyrone and his refusal to take this work up meant he had terminated his own employment.

There are three relevant sections of the Act to determine if an employee was redundant or not. Section 7(2) of the Redundancy Act states two circumstances where redundancy occurs. They are where an employer has ceased to carry on business or where the requirements to carry out work in a place where an employee was so employed has ceased. None of the above circumstances apply to this case.

Section 18 of the Act states “Where an employer dismisses an employee by reason of redundancy he shall give to the employee a certificate (in this part referred to as a Redundancy Certificate).” It is obvious this did not happen in this case as the employer did not issue this certificate. The Respondent confirmed at the Hearing that the Complainant has never been made redundant by the Respondent but they treated his absence as him terminating his own employment. In effect, the burden of proof shifts to the Complainant in this case to prove that a redundancy existed.

Section 9(c) of the Act states “For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only the employee terminates the contract under which he is employed by the employer without notice in circumstances such that he is entitled so to terminate it by reason of the employers conduct.” In this case the employer had work for the Complainant in the North of Ireland and believed they were entitled to send the Complainant to work in Tyrone under the contract of employment and continually offered the Complainant the opportunity to pursue the issue with them as a grievance and offered the complainant work soon after he ceased employment if , as it was likely, nearer his home. Therefore unless the Employer was in breach of contract by mistakenly interpreting “Ireland” to include the North of Ireland, there are no grounds for redundancy otherwise. However, having considered the matter at some length and taken legal advice on the issue the term “Ireland”, in legal terms, is defined as the 26 counties of the Republic of Ireland and does not include the North of Ireland. Therefore under Section 9(c) of the Act the Complainant was entitled to terminate his contract of employment due to redundancy as no work was available to him in the jurisdiction of his contract of employment.

Normally an employee would be expected to lodge a formal grievance to his location of work or continue to work under protest until the matter of where he could be assigned could be adjudicated on. However, as the employment opportunity had ceased in the relevant jurisdiction these factors have no significant merit in this case. The fact that the Complainant had previously undertaken work outside of the Republic of Ireland on two occasions in the past, albeit for around 4-6 weeks at a time are also not significant contributory factors. Indeed n one case the Complainant continued to reside in the Republic of Ireland while performing the work in the North of Ireland.

It was argued by the Complainants Representative the principle of “Contra Proferentum” should apply which I agree with and the Respondent should have been more specific with regard its intentions in writing the contract to include a broader definition of the location of work. I note they subsequently amended their standard contracts to be more specific about the required location.

I have given this case significant time to research if a legal precedent exists for this issue but I was not able to locate any. This is not a statement that they do not exist.

So of the three relevant sections of the Act, the Complainants case did not pass the test in 18 and 7.2 but I find he did pass the redundancy requirement in Section 9(c). The burden of proof shifted to the Complainant when he resigned from employment that a redundancy situation applied and he has proven that a breach of contract existed and that the “conduct” of the Respondent was such that justified his resignation from the employment on the grounds of redundancy.   His claim for redundancy succeeds accordingly.

Dated:   09/05/2017