ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008098
Parties:
| Complainant | Respondent |
Anonymised Parties | An Office Administrator | An Employer |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 |
CA-00010775-001 | 11/04/2017 |
Date of Adjudication Hearing: 15/09/2017
Workplace Relations Commission Adjudication Officer: James Kelly
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 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 is seeking her entitlement to a redundancy lump sum payment. The Respondent denies the claim stating that the Complainant was offered alternative employment and she turned that offer down. |
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent on 5 January 2015 as an Office Administrator at a warehouse doing typical office type duties until her employment came to an end on 15 March 2017. The Complainant claims that there were two other staff members working in the warehouse at the time. She said that she reported directly to Mr. A, a director with the Respondent. The Complainant claims that she did not get a contract of employment or a statement of the terms and conditions of employment. The Complainant said that she worked 40 hours per week, Monday to Friday, and her gross weekly wage was €423.08. The Complainant claims that on Friday, 3 March 2017, she and the other two staff were given verbal notice of termination of their employment by Mr. A. They were told that the warehouse would close as of Wednesday 15 March 2017. She said that she asked Mr. A if she would be getting redundancy as she has over two years’ service and she claims that he said he would honour whatever she was owed and she would get a good reference too if she needed one. She claims that the following Monday, 6 March 2017, Mr. A approached her and offered her three days employment at Head Office at another location about 15 minutes away. She said that three days was not sufficient and would not take up the offer. She said that she again mentioned the issue of her redundancy. However, this time she claims that Mr. A said that as he had offered her alternative work and she had turned that down she would not be entitled to redundancy. She claims that they had an exchange of words over who was correct on the issue of redundancy entitlement and Mr. A said that he would check it out and come back to her. The Complainant said that Mr. A returned to the office the following Wednesday, 8 March 2017, and again offered her three days’ work, which she again turned down. Then, she claimed, he said that he was in a position to offer her a five day working week at Head Office. She claimed that she asked Mr. A to put the offer in writing and he asked her in return if she did not trust him. The Complainant said that Mr. A arrived at the office on the morning of 15 March 2017 and asked if the Complainant was ready to go over to Head Office either that day or the following day to which she replied that she was working out her notice and was finishing up that day. She told him that she never got her offer of five days in writing as she had asked. She claims that Mr. A said he offered her the five day working week and that she could have written that up herself and signed it. The Complainant claims that Mr. A said that she had refused the offer of employment, whereas her reply was that she did not get an offer of employment. The Complainant said that Mr. A got annoyed and he left the office. She claims that on that evening after work she contacted Mr. A again to seek assurance that her redundancy would be paid and she maintains that he again reiterated that no redundancy would be paid as she had refused work. She claims that she waited for her P45 and final pay and the P45 was never sent out to her. |
Summary of Respondent’s Case:
The Respondent is an Irish company that provides, amongst other services, a management warehousing facility for third parties. The Respondent claims that the Complainant was employed as an office administrator at a warehouse facility for over two years. The Respondent detailed a particular complex legal dispute between two other external parties that it became entangled in, due to the services it had provided to them. This resulted in the Respondent receiving a cash award in the High Court in exchange for closing its warehousing facility, and the warehousing business effectively been returned to one of the external parties involved in the legal dispute. The Respondent does not dispute that originally the Complainant, along with two other employees, was advised that the facility was closing. However, as the Complainant had worked with the Respondent for some time and with Mr. A in a number of other companies in the past, it decided to offer her three days employment in a similar role at Head Office. It claims that her terms and conditions would be next to identical to her role in the warehouse, except for her location. However, it claims that she would now be closer to her home by 15 minutes and in an office where she had provided cover for on a number of occasions in the past. The Respondent accepts that the Complainant wanted five days and having considered this further it decided it would really like to keep her on and accordingly, offered her the five days’ work at Head Office. The Respondent claims that the Complainant would normally do all of Mr. A’s paperwork, and only recently she was tasked to ensure that everyone working with the Respondent had a contract of employment. It claims that when Mr. A asked the Complainant to write up the offer of the five days for the job at Head Office herself that that would be in line with how the Complainant and Mr. A would have interacted over the years. The Respondent maintains that it would have thought that it was clear that there was five days’ work at Head Office for the Complainant and if she required that to be put in writing that she could have prepared the necessary documentation herself and Mr. A would have sanctioned same. The Respondent claims that the Complainant turned down the offer of employment with it and chose to leave because she had been offered another job and subsequently started with immediate effect. It claims that the job offered was with one of the parties that were involved in the High Court legal battle that the Respondent found itself indirectly involved in and in effect which closed its warehouse facility. The Respondent claims that the Complainant would have remained doing the same actual administrative job that she performed with the Respondent in her new employment. The Respondent gave evidence that upon the Complainant leaving its employment it had to take on an additional office administrator on a five day week to work at its Head Office doing a similar job to the one the Complainant was offered. The Respondent maintains that the Complainant was offered the very same type of employment with the same pay and conditions at Head Office as she had for the two years previous in the warehouse facility and she had worked at Head Office many times, as cover for absent work colleagues, during the previous two years. |
Findings and Conclusions:
The Relevant Law Section 15 (1) of the Redundancy Payments Acts, 1967-2012 states that An employee who has received the notice required by section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal, (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 his dismissal, (c) the renewal or re-engagement would take effect on or before the date of dismissal, and (d) he has unreasonably refused the offer. Findings and Conclusions It appears to me there are a number of aspects that I must carefully consider in coming to a decision on this case. The most important by far is whether there was an offer of alternative employment and secondly should I find that there was an offer, did it constitute as a ‘suitable’ offer and therefore whether the Complainant’s actions were ‘unreasonable’ as per Section 15(1)(d) of the Acts. As noted above both parties have agreed that the Complainant was given verbal notice that the Respondent’s warehouse was to close down inside two weeks of that notice. I note that Mr A. approached the Complainant on the next available working day to offer her a three day week at Head Office to which she said that three days was not sufficient, that she wanted five days and that she, in evidence, said that she turned down the offer. I am told that two working days later Mr. A returned again and offered the Complainant what she had wanted, five working days. However, she claims that she asked for the offer to be put in writing. I note where the Complainant claims that she did not accept the offer as it was not put in writing. I note the professional relationship the Complainant had with Mr. A, where she looked after all his paperwork for a number of years while working with the Respondent. I also note that she had a specific task of checking up on whom, within the Respondent, had and did not have contracts of employment. I note that she identified herself as not having a contract of employment or a statement of the terms and conditions of employment. Therefore, I assume that when she originally started work with the Respondent she took up the job on foot of a loose arrangement similar to the offer of alternative employment in this instance. Notwithstanding, I am satisfied that the Complainant recognised that Mr. A made an offer of alternative employment on two different dates, namely on 6 March 2017 and 8 March 2017. I am equally satisfied that having been offered alternative employment, albeit not in writing, she chose to turn down that offer. Now I will look at whether the offer of alternative employment was a suitable offer. As noted above the alternative employment was to be at Head Office where the Complainant had worked from time to time throughout the previous two years. I note that there was no additional travelling involved, Head Office was actually closer to her home and it was more of a convenience than an inconvenience. No evidence was presented to suggest that the move to Head Office was going to cause the Complainant any inconvenience what so ever. I am satisfied that there was no evidence to suggest there would be any change to her conditions of employment or her rate of pay and, it would appear, that the job offered was similar if not identical to the type of work she did in the warehouse. I am satisfied that with some minor adjustments to her workplace, the Respondent’s offer of alternative employment was a reasonable offer, and her decision to refuse that offer on the basis of the evidence presented to me was ‘unreasonable’ as provided for in Section 15(1)(d). In my view, the Complainant’s reasons for rejecting the offer were insubstantial and without merit. There is some validity in the criticism that the offer was not made in writing and maybe the delay in the final offer being made. However, and without doubt, these are of a minor nature in the context of the overall situation and I am satisfied that the Respondent appeared to be doing its upmost to keep the Complainant in its employment. Accordingly, I conclude that the Complainant has unreasonably refused the offer of alternative employment and therefore, she is not entitled to a statutory redundancy payment under the Redundancy Payments Acts. |
Decision:
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.
As set out above, I find that the circumstances in relation to the termination of the Complainant’s employment did not constitute a redundancy situation and that consequently the claim for a statutory redundancy payment under the Redundancy Payments Acts fails. |
Dated: 15.11.2017
Workplace Relations Commission Adjudication Officer: James Kelly
Key Words:
Redundancy – change of work location - reasonable offer of alternative employment |