Complainant

Respondent

Anonymised Parties

A bus driver

A coach hire company

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-00016475-001

21/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00016475-002

21/12/2017

The complainant worked as a school bus driver for the respondent. Bus Eireann, who subcontract the respondent to carry out these runs, have a stipulation in their contract that drivers will not be used after they reach 70 years of age. The complainant was 70 on 23rd December 2016 and left the company as he could no longer do the school bus runs contracted by Bus Eireann, and he claims he was not offered any alternative employment with the respondent and was in fact made redundant.

The complainant worked as a bus driver for the respondent commencing in April 1992. In latter years he was solely utilised in driving on school bus runs. Bus Eireann, who subcontract the respondent to carry out these runs, have a stipulation in their contract that drivers will not be used after they reach 70 years of age. The complainant was 70 on 23rd December 2016 and left the company at that stage, as he could no longer do the school bus runs contracted by Bus Eireann, and he was not offered any alternative employment. The owner of the respondent company had informed him that he would give him money after Christmas, which the complainant took to mean, redundancy money. In spite of repeated requests this money was never paid.

The complainant, a Bus Driver, commenced his employment on the 1st of April, 1992. His duties included carrying out the school runs, which took place over two hours in the morning and over two hours in the afternoon, five days a week. The employee's date of birth is 23rd December, 1946. On reaching his seventieth birthday, employee ceased his employment with the Company as he was no longer able to carry out the school runs due to his age. The employee left the company on the 22nd of December, 2016. Prior to departing his employment, the respondent offered the employee alternative work in the form of driving alternative bus routes. The complainant was offered the same amount of hours and at the same rate of pay. The distinguishing factor being that the alternative bus routes took place once in the afternoon and once in the evening. The employee did not accept this alternative offer, intimating to his employer that he "likes his school run hours" or words to that effect.

The definition of redundancy is set out in Section 7(2) of the Redundancy Payments Act 1967, as amended, being as follows:

“(2) For the purposes of subsection (1), 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 carry on that business in the place where the employee was so employed,

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish,

or(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise,

or (d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained,

or(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified...".

In ensuring fairness an employer is obliged to examine alternative employment they might offer the employee, as evident in O'Connor v. Power Securities Ltd UD 344/89. The case of Paisley v. Mc Cormack Dental Ltd UD 1257/2002 provides that an employee must be aware that he is being considered for redundancy when he is being offered this alternative employment. The employer must give all the relevant information to the employee before he/she rejects the offer of the alternative employment, otherwise the dismissal may be considered to be unfair as seen in Modern Injections Moulds Ltd v. Price [1976]. The nature of the information must be sufficient enough so as to provide the employee with the ability to make a decision.

Regarding alternative employment Section 15 of the Redundancy Payments Act 1967as amended provides that an employee will lose his or her entitlement to redundancy-payment where he/she unreasonably refuses an offer of alternative employment, providing -

"15.—(1) 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.

(2) 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 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 inwhich 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 his dismissal,

(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 dismissal,

and(e) he has unreasonably refused the offer.

Precedent has also provided authority that an employee will incur consequences by failing to accept alternative employment.

It is apparent that the respondent did identify and explore less drastic measures than redundancy as he was obliged to do. At all times the employee was aware of the terms of the sub-contract agreement that on reaching 70 years one was no longer able to carry out the school runs. The employee commenced employment in and around 26 years ago, and we can reasonably argue was aware of this term, having observed fellow employees leave their employment on reaching seventy. At no time was the respondent deceptive as to the terms of the sub-contractor agreements. It is clear that the respondent discussed other options of employment with the employee, and that the employee was aware his school run post was no longer viable at the time of these discussions. The employee was given a proper opportunity to consider the alternative work. It is apparent the employee chose to take a dismissive stance, and adduced no real reason apart from a personal preference, as to why he would not apply for the alternative positions.

The respondent adequately considered other alternatives to redundancy. The respondent offered a form of alternative employment, which offered the same conditions in terms of remuneration and hours, which were at a slight variant to those previously worked.

The essential question to be addressed by me is whether this was a genuine redundancy situation.   The complainant has argued that he was at no stage told that there was alternative work for him and was effectively given to believe that he was being made redundant. The central plank of the respondent’s case is that there cannot be a redundancy claim as the complainant unreasonably declined alternative work, namely other routes with the same conditions of employment.

The respondent in its written submission has argued that there was an implied term that bus drivers with the respondent retire at 70. However, in evidence at the hearing, the respondent stated that there was no retirement age in the company. There is no contract or terms of employment which specified a retirement age. In the absence of a written contract the complainant’s employment was open ended and the fact that he was 70 was irrelevant, other than in relation to the contract with Bus Eireann.

If the complainant had refused suitable alternative work then this would indeed be a defence to the redundancy claim. It is the respondent’s position that he did refuse such work. However, the evidence would suggest that the respondent did not communicate effectively with the complainant that there was other work available to him. There is nothing in writing to indicate that he adequately communicated this essential information and the complainant denies that it was ever mentioned.

I also note that the respondent did not ask the complainant about whether or not he had renewed his licence – a requirement on reaching the age of 70. If the respondent intended to continue the employment relationship this would have been an essential piece of information. The complainant did in fact renew his licence on 16th December 2016 and went on to secure work with another company which would indicate that he did not intend to retire which would support his legitimate belief that there was no work with the respondent.

I am therefore satisfied that this was a redundancy situation and the complaint is well founded.

I award the complainant a redundancy lump sum payment under the Redundancy Payments Acts 1967 to 2014 based on the following details.

Date of Commencement:         1 April 1992

Date of Termination:             22 December 2016

Gross Weekly Pay                   €300

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Genuine redundancy. Information regarding alternative work not communicated.