FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : CO-OP AGRI SOURCE LIMITED T/A ASSOCIATED TRADING CO-OPS (REPRESENTED BY CLAIRE BRUTON B.L., INSTRUCTED BY RONAN DALY JERMYN) - AND - PATRICIA MORAN DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Shanahan |
1. An appeal of an Adjudication Officer's Decision No: ADJ00002887.
BACKGROUND:
2. The employer appealed the decision of the Adjudication Officer to the Labour Court on the 16 January 2017. A Labour Court hearing took place on the 4 May 2017. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Co-op Agri Source Limited t/a Associated Trading Co-ops against the Decision of an Adjudication Officer under the Redundancy Payments Act 1967- 2014 (the Acts) ADJ-00002887, CA-00004013-001 dated 6th December 2016. Ms Patricia Moran claimed that she was entitled to a redundancy lump sum payment from her former employer Co-op Agri Source Limited t/a Associated Trading Co-ops. The Adjudication Officer upheld Ms Moran’s claim for a lump sum payment pursuant to the Act. The notice of appeal was received by the Court on 16th January 2017.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Moran will be referred to as “the Complainant” and Co-op Agri Source Limited t/a Associated Trading Co-ops will be referred to as “the Respondent”.
Background
The Respondent is a company limited by guarantee and not having a share capital,operates on a principle of not for profit,whose purpose is to coordinate the purchase of a wide range of store goods for its members, being 18 separate Co-ops. Itwas founded in 2001. Irish Co-op Organisation Society ("ICOS") originally facilitated its development to the extent that they provided office space at their own offices located at Glasheen Road,Cork. The objective of the Respondent is to improve Co-op members' margin and competitiveness.
The Complainant was employed as a part time Office Administrator by the Respondent from 20th March 2006 until 1stFebruary 2016. Herworking hours were 9.00am to 3.00pm, Monday to Thursday,she was paid€26,000 per annum.
Summary of the Complainant’s Case
The Complainant submitted that her job was based at Glasheen Road and that when the Respondent moved its office location to Carrigtwohill she was no longer able to fulfil her role. The difference in locations was 10 km. She said that she did not wish to give up her job however the change in location made it impossible for her to fulfil her contract, thereby making her redundant.
The Complainant stated that she was not included in the Strategic Review which resulted in the change of office location. She said that she was not interviewed, she was not given any feedback or report on the review and she found this upsetting as she was the Office Administrator. Due to stress and work related pressure she was advised by her GP to take time off on sick leave.
The Complainant told the Court that in February 2016 she accepted a job offer of 10 hours per week from an environment consultant company based in Cork and she commenced working with it at that time. She said that during her employment with the Respondent she also had a counselling business. This was possible due to her working hours with the Respondent; however as a result of the change in location, she said that it would become more difficult to manage this business.
Summary of the Respondent’s Position
Ms Claire Bruton, B.L., instructed by Ronan Daly Jermyn Solicitors, on behalf of the Respondent, stated that in 2015,following a review of its operations, the Respondent’s Board decided that it was necessary to relocate its offices, as the ICOS office was closing in June 2016 and its location there was unsuitable.
Ms Bruton said that at all times the Complainant was kept updated regarding the sourcing of an office location and in fact spent some time researching office space and made a number of suggestions. Her opinions and views taken into consideration, since it was expected by both parties that she would continue her employment after the office move. Indeed, the Complainant had said that she would go anywhere to keep her job.
New office premises at Carrigtwohill, Co. Cork were located and a lease signed in September 2015. The Complainant was aware of this and did not raise any issues with regard to the new location at this time. The move took effect from 4th January 2016.
At no stage did she express any concerns or grievances in respect of the proposed move and proceeded to prepare a budget for the costs associated with the office move.The Complainant sourced and priced new fixtures and fittings and started to arrange for an IT change over, together with organising and scheduling the installation of telephone and broadband.At no stage did she communicate to the Respondent that she had changed her mind and did not wish to move to the new location.
The Complainant sought redundancy in November 2015 in spite of being re-assured her role would not change in any way upon the re location. The offer of examining her hours of employment were made at this time but not pursued by the Complainant. The new office is 15.2 km away from the Complainant’s home, the previous office being 5 km from her home. This is a difference of 15 minutes' drive. The Complainant had always had a parking space and had ready access to a vehicle and had always driven to work.
The Respondent was not in a position to provide statutory redundancy as no redundancy situation arose,the Complainant's role continues to exist on the same terms and conditions of employment and was at all times available to her. The Respondent was anxious to retain her.
The Respondent asked the Complainant to consider working different hours (start and end times) to in order to avoid peak traffic with no loss of pay and later proposed that she work less hours whilst retaining her salary at the full rate, in spite of a reduction of 30 minutes working time per day. However, there was no substantive engagement by the Complainant with these proposals and she did not meet the Respondent in spite of a meeting being suggested. She maintained that the change in location rendered it impossible for her to continue working and instead she sought redundancy.
On 23rd November 2015, the Complainant approached the General Manager seeking a redundancy payment. When this was refused on the basis that no redundancy situation existed, the Complainant then confirmed she had made a decision and it was her intention to leave her employment with the Respondent with or without a redundancy payment. The Respondent was taken aback by this and asked her to take some time to consider her decision to resign and suggested a further meeting for 2nd December 2015, with a view to reaching a satisfactory resolution of the matter.
On 21st December 2015, the Complainant advised the Respondent that she was not fit to return to work. She submitted sick certificates for"work related stress"from 21st December 2015 to 1st February 2016.
On 22nd January 2016 in response to an email from the Respondent, the Complainant maintained her position that the change of office location rendered it impossible for her to continue working for the Respondent, as she now had another job which conflicted with the move. This was the first time the Respondent was aware that she had another role. By email dated 15th February 2016 the Respondent confirmed that it wished to see the Complainant return to work and that her role continued to exist in the Company. The Complainant ceased furnishing sick certificates but did not return to her employment.
The Complainant responded by email dated 8th April 2016 again noting that it was not possible for her to fulfil her contract and the Respondent took this to mean that the Complainant had no intention of ever returning to work or of trying out the new office location. The Complainant submitted her complaint under the Acts to the Workplace Relations Commission on 26th April 2016 alleging an entitlement to a redundancy lump sum pursuant to the Redundancy Payments Acts 1967-2015
Ms Bruton said that the Respondent was totally unaware of the Complainant's counselling business, this had never been mentioned prior to the hearing of her claim under the Acts.
Ms Bruton submitted that the Complainant had voluntarily abandoned her employment; at no stage did she give the new office location an opportunity even on a trial basis. In such circumstances, she submitted that there was no dismissal, and accordingly there can be no redundancy entitlement arising. In any event, she contended that the Complainant was offered more favourable arrangements in order to facilitate her, which constitute an offer of “suitable alternative employment” within the meaning of Section 15 of the Acts.
The Applicable Law
Section 7 (1) of the Acts provides:-
"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…..
Section 7(2) provides that:
" ...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 carryon that business in the place where the employee was so employed
Dismissal for the purposes of section 7 is set out in section 9 of the 1967 Act, as follows:-
"(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 that 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 entitledsoto terminate it by reason of the employer's conduct. "
Conclusions of the Court
The Respondent contended that the Complainant abandoned her employment and accordingly there was no dismissal. For there to be a redundancy there must be a dismissal of an employee.
Having considered the oral and written submissions made by both parties the Court notes the following:-
- •the Respondent constantly tried to reassure the Complainant that the change of location would have no adverse effect on her role, she was informed that her job was secure and that there would be no change to her terms and conditions of employment as a result of the move;
- •the Respondent having being informed of the Complainant’s difficulties regarding her travel times made a number of offers to facilitate her concerns. It offered to change her starting and finishing times and offered to reduce her working hours by 30 minutes per day, with no loss of pay, to take account of the extra travel time involved;
- •in response the Complainant informed management that she would not be able to fulfil her contract once the business transferred to its new location. In order to address her concerns, the Respondent offered her a number of opportunities to meet and discuss her concerns but she failed to avail of such opportunities;
- •the Complainant never informed the Respondent of the existence of her counselling business;
- •in its numerous emails to the Complainant around this time, the Respondent constantly sought clarification of her stance that she was “no longer able to fulfil her role”. However, the Complainant did not explain her difficulties in particular the difficulties she anticipated due to her counselling business; and
- •the Complainant accepted that she left her employment of her own accord due to the stress she was under in coping with the move.
The Court considers it noteworthy that the Complainant never offered the Respondent an explanation for her concerns; in particular, she never mentioned the difficulties she envisioned due to her counselling business. It appears to the Court that management were most anxious to get the Complainant back to work, it was in constant communication with her and was making every effort possible to facilitate her concerns. The Complainant was not prepared to meet with management to discuss the situation and she remained steadfast in her belief that she was entitled to redundancy as she was no longer able to fulfil her role. In all the circumstances, the Court is satisfied that the Complainant was not dismissed by the Respondent, she chose to leave her employment of her own accord. Therefore no redundancy situation arises.
Determination
The Court determines that the Complainant was not dismissed from her employment and consequently was not made redundant by the Respondent. Accordingly the Respondent’s appeal succeeds and the Adjudication Officer’s Decision is overturned.
The Court so Determines
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
16 May, 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.