ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005455
Parties:
Construction Operative Construction Firm
Complaint(s):
Act
Complaint/Dispute Reference No. CA-00007660-001
Date of Receipt 17/10/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967
Date of Adjudication Hearing: 19/01/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 39 of the Redundancy Payments Acts 1967 - 2014] 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).
Both parties undertook to submit further documentation following the hearing – the respondent’s documentation was received on the 17th.Feb. 2017.The claimant was invoking a Labour Court Determination in support of his claim – despite reminders the details of the determination being relied upon were not furnished to the Commission.
Summary of Complainant’s Case:
The claimant was employed as a Construction General Operative with the respondent from the 16th.Nov. 2009 – 17th.Oct 2016.The claimant submitted the respondent was in breach of the Act for failing to pay the claimant his statutory redundancy entitlement on termination of employment.
The claimant stated that he had submitted an RP9 form to his employer seeking redundancy on the 31st.August 2016 as he had been on layoff/short term since the 11th.March 2016.He submitted that the respondent failed to reply to same but offered him work in Athlone 2 weeks later.He discovered on receipt of his wages that a €150 weekly travel allowance – which he had been receiving for 4 years - was not being paid to him.The claimant stated that he lived in Kiltimagh and his place of work had been Bellanaboy , North Mayo approx. 50 miles from his home.He submitted that Athlone was 70 miles from his home and that it was not feasible to travel there each day without expenses.When he raised the matter with his employer , he was advised that the allowance only applied to Bellanaboy - the claimant asserted that it had been part of his terms and conditions for 4 years and he had never been made aware that it related only to Bellanaboy.The claimant contended that the offer of work in Athlone did not constitute reasonable alternative work and that consequently he was entitled to redundancy.The claimant asserted that the non payment of travel resulted in redundancy and fundamentally changed his contract of employment.He acknowledged that he was not paid the travel allowance when he was assigned to work in a Mayo school but advanced that transport had been provided for him.It was contended that the EAT decisions invoked by the respondent did not set a precedent and his representative undertook to furnish details of a Labour Court determination which would support his contention that he was entitled to redundancy.He submitted that when he was assigned to work on a house in Mayo , he was paid travel of €120 per week.The claimant submitted that his contract of employment was with the respondent and not the gas company.He submitted that he was never advised that the allowance was site specific – he contended that the employer’s cessation of the allowance was a fundamental breach of his contract of employment .The claimant submitted that the offer of an assignment that was located significantly further away from his home on a reduced rate of travel did not constitute reasonable alternative employment and that accordingly he was entitled to statutory redundancy.
Summary of Respondent’s Case:
The respondent set out a chronological account of the claimant’s history with the company – It was submitted that when the claimant was offered work in Athlone in Sept.2016 , he claimed the payment of country money ( €150 per week ) and when he was advised that he was not entitled to it and was offered an alternative allowance of €100 per week towards his travel costs , he declined the offer and terminated his own employment on the 17th.Oct. 2016.
It was submitted that similar to other construction companies , the location of the project , the number of personnel required and the duration of the project varies significantly.It was submitted that the nature of the industry was that contractors and workers are required to be mobile and that workers can reasonably be expected to be transferred if one site is complete and another is starting.It was submitted that the claimant was a valued member of staff and was paid good terms and conditions of employment.
When the claimant started work with the respondent he was assigned to site C – a very large development with hundreds of construction workers and the client made every effort to ensure uniformity of terms and conditions of employment to minimise IR difficulties. Reference was made to an agreement on subsistence allowance/country money between CIF and the construction group of unions which states
“The allowance shall be paid in accordance with the Local Working Rule Agreement or where none applies , where an operative has to reside away from home in the performance of his duties”.
It was submitted that on the C site , the client stipulated that all workers receive the country money allowance regardless of the requirement to “ reside away from home”.It was contended therefore that the claimant was paid the allowance even though he was not entitled to it.
As work was winding down at site C , the claimant was placed on temporary layoff and worked sporadically for the company between March and Sept. 2016.In May 2016 , the claimant was advised that “travel” ( country money) was paid on the C site only.
The claimant completed an RP9 form in September , but the respondent was in a position to offer him a period of continuous work initially on site C and subsequently in Athlone from the 23rd.Sept.2016.On the 28th.Sept. the claimant queried why his wages were short (€150 down ) and he was again advised that the country money only applied to site C.A number of emails were exchanged between the parties culminating in an offer of €100 travel allowance which was declined by the claimant and he did not return to work.
It was submitted that the country money is only paid in certain circumstances – it was paid on site C because it was “ a Local Working Rule Agreement “ attached to that project.This agreement did not apply to the Athlone site and the claimant did not reside away from home in the performance of his duties while on that site.It was contended that consequently the claimant was not entitled to that allowance.It was submitted that he would have been paid the allowance if it was necessary for him to “ reside away from home in the performance of his duties” in accordance with the collective agreement and custom and practise.It was submitted that the claimant was offered a generous travel allowance which other workers would not have received.
It was submitted that the claimant worked on other sites where he was not in receipt of country money.It was advanced that the country money received by the claimant on site C did not form part of his wages.
It was submitted that there was no obligation on the respondent to complete Part C of the RP( form and RP2706/2011 was invoked in support of this assertion.
The respondent submitted that the claimant was not redundant and was not offered a suitable alternative position to redundancy.It was contended that his employment continued all be it at a different site and this was in accordance with custom and practise in the industry.
It was argued that the facts were similar to RP401/2007 where the EAT determined that a redundancy did not arise where a General Operative refused to travel when he was required to relocate 100 miles from home.The claimant was replaced on the Athlone site and thus it was contended that there was no redundancy.RP273/2013 was invoked in support of this contention where the EAT determined that the claimant’s position was not extinguished when his job continued at a different location.
The REA covering country money and travel allowances was submitted post hearing – it requires that the allowance applies where an operative has to reside away from home in the performance of his duties and specifies that travel allowances are applicable and payable in the main urban areas but does not include Sligo where the respondent is based.
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.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have reviewed the evidence presented at the hearing and noted the conflicting position of the parties. I acknowledge the deeply felt sense of grievance expressed by the claimant about the inconvenience and cost of work based in Athlone and have taken account of the respondent’s reliance on custom and practise in the industry in relation to significant variations in the location of sites. Additionally I accept the respondent’s contention that the payment of the country allowance on site C was site specific. Notwithstanding this I found the claimant’s contention that he was never appraised of the background to the payment of the allowance on site C and consequently find that his expectation that the allowance would continue to be paid at a location further from his home was not unreasonable.I note the respondent’s contention that redundancy did not arise as the claimant’s position was subsequently filled in Athlone.I further note the respondent’s assertion in their post hearing submission that “Travel allownaces do not apply to the Sligo area and therefore ..the claimant … was not entitled to an allowance while working on the site in Athlone”.
Having considered the entirety of the submissions , I find that the offer of work in Athlone – 70 miles from the claimant’s home - on a reduced rate of travel differed significantly and detrimentally from the terms and conditions of the claimant’s previous assignment and accordingly I do not accept the claimant was offered suitable alternative employment. Consequently I am upholding his complaint and require the respondent to pay the claimant statutory redundancy within 42days of the date of this decision.
Dated: 20/12/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea