Complainant

Respondent

Anonymised Parties

Retail Manager

Fashion Retailer

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-00019338-001

22/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00019338-002

22/05/2018

The Complainant was employed as a Retail Manager from 15th June 2010 to 18th April 2018. She was paid €3,771.00 per month. She has claimed that she was refused a redundancy payment.

She was first hired by the Respondent in June 2010 for the position of assistant store

manager. She was then promoted to be the concession manager of a Concession Store, a

subsidiary store of the Respondent, in November 2014. In April 2017, she was informed by her

line manager and HR that the Concession Store will close at the end of June of 2017. She was

presented with two options: 1.redundancy payment or 2.cover for maternity leave as store manager.

After she decided to take the redundancy payment, the Respondent HR department arranged a

Skype call session with her and told her that the redundancy option was not available anymore since there was a same level of position available (i.e. maternity cover) for her to take or else I could resign. The HR also mentioned that her redundancy payment would be more since she would be staying longer to cover for the maternity leave. Before she made her decision, she arranged a phone call to her line manager for clarification. During the phone call, she asked if she would

still received redundancy if any supporting or assistant store manager position become available. Her line manager clarified it with the HR Director during the call and confirmed that she would not receive the redundancy payment only if the store manager position became available. She also mentioned that all other supporting manager roles were lower level than her current position. Based on their clarifications, she decided to cover for the maternity leave. During the time she was covering as the store manager, her line manager asked her if she would be interested to stay working at the Respondent’s after the maternity leave. I told her that I would not stay after I finished covering for maternity leave and would be taking her redundancy as had been told. A month before the return of the store manager from maternity leave, she checked with HR in regards to her redundancy. The HR department wrote that she would not get any redundancy because she had resigned. The HR department then began to ask her for my resignation date and a written

confirmation. She emailed her previous line manager in this regards, but never received any response from her. Upon the return of the store manager from her maternity leave, she was given a

confirmation letter for a position as Assistant Store Manager. She did not agree to that position as a suitable alternative. It was in fact a junior role and demotion from her previous position despite all other terms and conditions remaining unchanged. She had made her decision to cover for maternity leave based on what HR told her in May 2017. The position of Assistant Store Manager

was a step backward in her career. She was made redundant as there was no same

level of management position available for me and this is the reason that she brought

this matter to WRC.

They stated that there was no dismissal. The Complainant resigned her position on 18th April 2018. She was not dismissed by reason of redundancy and is not entitled to redundancy payment. She was initially employed on 15th June 2010 as Assistant Manager. On 20th October 2014 she was appointed Concession Manager leading a team of three employees. This was commensurate to an Assistant Store manager position in the company and it represented a lateral move in terms of seniority. On 5th April 2017 she was advised of the possible closure, this was an “at risk” consultation. She was advised that her role was at risk of redundancy and if a suitable alternative role could not be found her employment could be terminated and she would receive statutory redundancy. On 7th May 2017 she was advised that the Concession store would close. She was told that a suitable alternative role was identified as maternity leave cover at manager level. She would retain her current terms and conditions. She was told that this cover would last to 2nd April 2018. She accepted this offer. On 31st July 2017 she applied for an Administration Manager position which was near her home. This is a junior role and it was deemed to be unsuitable by the Respondent for her. In or around 21st November 2017 her former position of Assistant Manager became available. It t is the Respondent’s position that they understood that the Complainant accepted this offer. In or around March 2018 the Complainant resigned her position. She gave no reason for the resignation. The Complainant queried her redundancy payment. The Respondent replied that she was not entitled to it. The Complainant withdrew her resignation and followed up on her query on redundancy payment. She was advised that as a suitable alternative payment had been found there would be no redundancy payment. The Respondent affirmed their satisfaction with her staying in the company. On 2nd April 2018 the maternity leave ended and the Complainant was confirmed as Assistant Manager. On 18th April 2018 the Complainant resigned with immediate effect.

The Respondent quoted the provisions of the Redundancy Payments Acts. They stated that the Complainant was not dismissed. There was no termination by reason of redundancy. She was offered suitable alternative employment on the same terms and conditions of employment. The Complainant unreasonably refused a suitable offer of employment at the same level. The role of Assistant Manager is at a commensurate level a Concession Manger. It was pointed out that she had applied for a more junior role some time before rejecting a commensurate role. She resigned on 18th April 2018 having unreasonably refused a suitable alternative position. The position of Assistant manager is available and the Respondent would be happy to reappoint her to that role.

I find that the primary matters for adjudication concerns the following

1)What took place at the meeting on 5th April 2017

2)the suitability of the offer of alternative employment

3)was the decision to refuse the offer reasonable.

1)The meeting that took place on 5th April 2017

I note that it is the Complainant’s position that she was advised that the Concession Store was closing and that she was offered statutory redundancy.

It is the Respondent’s position that this was an information meeting only and she was advised that her position was at risk and if no suitable alternative employment was available then she would be entitled to statutory redundancy.

I have considered the evidence presented at the hearing and I find that this was a meeting to advise the Complainant of the potential closure of the Concession Store.

I find, on the balance of probability, that at this meeting the Complainant’s role was placed at risk of redundancy and she was not definitively advised that her position would be made redundant and that she would receive statutory redundancy.  

2) The suitability of the offer of alternative employment

I find that the Complainant at the time of being placed at risk of redundancy on 5th April 2017 was a Concession Store Manager.

I note the conflict of evidence regarding the status of a Concession Manager.

I accept that as Concession Manager she was the “Boss” in her own right.

I find the Respondent’s evidence more compelling and I accept that this position is commensurate to the position of Assistant Manager. I was assured that the terms and conditions of employment were commensurate with the position of Assistant Manager.

I refer to Section 15 of the Act which provides:

·        “15. Disentitlement to redundancy payment for refusal to accept alternative employment (1) An employee shall not be entitled to a redundancy payment if -

o   (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 the termination of his contract, and (d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if -

o   (a) his employer has made to him in writing an offer to renew the 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 differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract, (c) the offer constitutes an offer of suitable employment in relation to the employee, (d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and (e) he has unreasonably refused the offer.

(2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section. (2B) Where—

o   (a) an employee's remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and (b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer, such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.

(3) Where a person who is entitled to a weekly payment has unreasonably refused suitable employment offered or approved by An tSeirbhís Oideachais Lean�naigh agus Scileanna, that person shall be disqualified from receiving any further payments.”

I have considered the evidence before the hearing and I find that the offer of the position of Assistant Manager with the same terms and conditions of employment in my opinion constitutes an offer of suitable alternative employment.

3) Was the decision to refuse the offer reasonable.

I find that the Respondent offered what was in effect, her old job back. This position was at Assistant Manager level. She had operated the Concession Store Manager role from 20th October 2014 to 7th May 2017. I have found that this position was commensurate to Assistant Manager level, with the same terms and conditions of employment.

I find that it was unreasonable of the Complainant to refuse what was in effect, the same job as she had before and at the same terms and conditions as the Concession Store manager role.

Entitlement to redundancy

This was a duplicate of the claim under the Redundancy Payments Acts. The Complainant stated that she did not raise a formal grievance before resigning her position. She resigned on 18th April 2018 with immediate effect.

This is the same claim as was made under the Redundancy Payments Acts. The Complainant is not entitled to pursue two sets of proceedings in relation to the same set of facts. This should be rejected.

I note that the complaint taken under this Act is the same as under the Redundancy Payments Acts.

I find that the Complainant is not entitled to take a claim in respect of two sets of proceedings relating to the same set of facts.

I also note that the Complainant had not raised a formal grievance regarding this dispute.

I recommend that I cannot deal with a set of proceedings already adjudicated upon above under the Redundancy Payments Acts.

Entitlement to redundancy payment