Complainant

Respondent

Anonymised Parties

An Employee

A Service Management Company

Representatives

Deirdre Canty SIPTU

John Barry Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021591-001

05/09/2018

The Complainant’s commenced employment with the Respondent, a services management company, in June 2008, as a cleaning operative. The Complainant was based in an airport site.

In 2015 the Complainant was promoted to the role of supervisor. In this position, the Complainant supervised all floor/lounge staff. She worked a 40-hour week, on a 7 am to 3 pm/Monday to Friday roster.

In October 2016, the Respondent’s Client advised of their dissatisfaction with the manner in which the service was being delivered. The Client issued the Respondent with an ultimatum that if the required changes did not take place, the contract would be lost. As a direct result of this development, the Respondent hired a new Contract Manager (Ms A), who was tasked to review and implement changes, thereby improving the service provided.

As part of the changes implemented, a new management team structure was put in place in April 2017. The new structure involved moving one of three members of the existing day time management team to a night shift. As the person chosen to move, the Complainant was advised that her new shift pattern would be: 4 pm – 12 midnight/three days a week and 7 am – 3 pm on Saturdays/Sundays.

As the new roster did not suit her for personal/family reasons, the Complainant discussed the situation with Ms A. During these discussions alternative roles, both within the Respondent organisation and within the airport, were discussed. After declining a number of alternative roles, the Complainant expressed an interest in the position of lounge attendant.

The position of lounge attendant was a 35 hours per week role, which was a reduction of five hours per week to that which she previously worked. The role was also seasonal, which meant that an alternative position would be offered following the closure of that lounge at the end of the season. Notwithstanding the fact that the role of lounge attendant was significantly different to that which she previously held, it was agreed that the Complainant will commence the role on a four week trial basis. The Complainant retained her previous supervisory rate of pay in the new role.

The Complainant continued in the role of lounge attendant until the closure of the lounge at the end of the season. At that point, the Complainant was offered three alternative positions as follows:

1.       A position as a cleaning operative in varying offices/departments/areas within the airport, across five days (Monday/Friday), totalling 31 hours per week.

2.       A position as a lounge attendant combined with one mornings cleaning work, which totalled 32.5 hours per week across five days (Monday/Friday).

3.       As a member of the discharge team on a Client Hospital site, on a Monday/Friday shift from 11:30 am to 8 pm, totalling 42.5 hours per week.

The Complainant refused all of the above positions on the basis that they were not considered as suitable alternatives to the previous post. The Complainant eventually returned to work on 28 December 2017 working a 6:00 am to 12:30 pm shift on Thursdays/Fridays. This represented a 13-hour working week.

The Complainant submitted a grievance regarding the change of role/reduction in working week on 23 January 2018. The Stage I Grievance Hearing took place on 20 February 2018, with the decision, that the grievance was not upheld, issuing on 12 March 2018.   The Complainant appealed the decision on 12 March 2018. However, as the Stage 2 Grievance Hearing had not taken place by 22 May 2018, the Complainant referred the matter to the WRC on that date. On 11 June 2018, the Respondent invited the Complainant to a Stage 2 Grievance Appeal Hearing, which was held on 15 June 2018.

While awaiting the outcome of her appeal, the Complainant received notification from the WRC on 11 July 2018 advising that the Respondent had objected to an Adjudication Officer hearing the complaint which had been submitted on 22 May 2018, on the basis that the matter was still being dealt with internally by the Respondent.

On 26 July 2018, the Complainant was advised that her grievance appeal had been unsuccessful. The Complainant submitted her claim to the WRC, under the Industrial Relations Act, on 5 September 2018.

It was submitted on behalf of the Complainant, by her Trade Union representative, that her full-time role was terminated by the Respondent and no suitable alternative position was made available to her. According to submissions, the Complainant was only offered a seasonal post from May to October and that, during the remainder of the year, she could only avail of a 13 hours per week position. It was further submitted that the Complainant’s earnings have been significantly reduced and she is finding it difficult to sustain working on these reduced hours.

According to the Complainant’s submission, the Respondent has reduced her hours of work even further in relation to the seasonal post of Lounge Attendant. It is submitted that the Complainant has suffered loss of earrings due to the post being issued.

It was further submitted that the Respondent disregarded the Complainant’s grievance by delaying the process and that such behaviour is unacceptable.

According to the Complainant’s submission, the Respondent issued notifications to her each year regarding the seasonal post and request that she signed the letter to accept the hours of work. It is submitted that the Complainant has no choice only to accept these hours, otherwise she would have no hours allocated to her.

It was submitted, on behalf of the Complainant, that she has been a loyal employee for many years, but the Respondent has shown total disregard for her. It is contended that the Respondent was trying to push the Complainant into a position whereby she would have to leave as her post is gone but the Respondent has not issued redundancy. It is contended that this is unacceptable behaviour as the Complainant is seeking to be treated fairly, as a valued employee and issued with suitable hours of work and be allowed to earn a living.

In conclusion, it was submitted that the Complainant is requesting a return to full-time post of 40 hours per week as Chargehand. In the event that this is not possible, the Complainant is then seeking to be issued with redundancy or an exit package to allow her to find alternative suitable work as her post of Chargehand has been terminated. In addition, the Complainant is seeking compensation for loss of earnings suffered as a direct result of the change in her role/position.

The Respondent submitted that they have at all times treated the Complainant fairly. In this regard, the Respondent submitted that the grievance process was followed, the Complainant’s rights to natural justice have been respected and her grievance complaint has been dealt with in a reasonable manner.

In response to the Complainant’s contention that the Respondent had failed to provide a suitable alternative position when it was necessary to restructure the management team at the site, the Respondent submitted that the Complaint was originally moved to the night shift in the exact same position, but due to her personal circumstances was not able to accept this position.

It was submitted by the Respondent that, while they accepted this situation, they had, in such circumstances, to find another position for the Complainant. According to the Respondent’s submission, the Complainant was offered three positions, each of which was equivalent to the Complainant’s previously held role. It was further submitted that, in addition, the Complainant was offered an additional role on a brand-new blue-chip site, but this was also refused.

According to the Respondent’s submission, the Complainant has been given every opportunity to continue in their employment but has continually refused to accept the reasonable offers put to her. The Respondent submitted that the Complainant has accepted seasonal lounge attendant work and subsequently, every year has refused to accept any other alternative role, at the end of each season.

In conclusion, the Respondent submitted that, at all times, they considered the representations and wishes of the Complainant, who agreed, as part of her contract of employment, to be flexible when she accepted the position in 2008. However, despite the Respondent’s attempts, the Complainant has refused to accept any position offered, other than the seasonal lounge attendant role, and has consistently refused all other offers.

Having carefully considered all of the evidence presented and the submissions made by and on behalf of the respective parties, I find little to support the Complainant’s contention that the Respondent has acted unfairly or inappropriately in the manner in which dealt with her situation.

The changes implemented by the Respondent in 2016/2017 came about as a result of pressure from their Client to improve the quality of service or risk losing the contract. In such a context it is not unreasonable that the Respondent decided to make changes, which they may otherwise not have made. One of the changes implemented resulted in the Complainant’s position being moved from a daytime shift to an evening/night shift. While I appreciate that this change had a particular impact for the Complainant, on a personal level, it has to be accepted that with the exception of the timing of the shift all other aspects of the Complainant’s role, including pay and seniority remained intact.

I am also satisfied that when alerted to the Complainant’s difficulties and/or dissatisfaction with an evening/night shift, the Respondent entered into serious discussion with her in relation to alternative positions. Having carefully reviewed the three options put to the Complainant by the Respondent at that time, I am of the view that while they would not have been ideal from the Complainant’s perspective, either in terms of hours of work and timing of shift, they all represented reasonable alternatives in the circumstances. It should also be noted that further alternatives have been offered to the Complainant since those initial offers were made.

The Complainant contends that the Respondent is trying to push her into a position where she will have to leave the company without being provided with the redundancy to which she is entitled. I do not accept the Complainant’s contentions in this regard. Firstly, I do not accept that the Complainant’s original position was made redundant. I am satisfied that the position was moved to a different time. However, notwithstanding the Complainant’s dissatisfaction with the timing of her shift, there is validity to the Respondent’s position that no redundancy existed.

Even if it was accepted that the Complainant’s position had been made redundant, cognisance must be taken of the efforts made by the Respondent to provide an alternative position. Section 15 of the Redundancy Payment Acts sets out the provisions relating to “Disentitlement to redundancy payment for refusal to accept alternative employment”.  

“15.—(1) An employee F33[…] shall not be entitled to a redundancy payment if F33[…]—

(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 F34[the termination of his contract],

(c) the renewal or re-engagement would take effect on or before the date of F34[the termination of his contract], and

(d) he has unreasonably refused the offer.

(2) An employee F33[…] shall not be entitled to a redundancy payment if F33[…]—

(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 F34[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 F34[the termination of his contract], and

(e) he has unreasonably refused the offer.”

In determining cases of this nature, it is necessary to consider two issues: (1) the suitability of any alternative offer made to an employee and (2) the reasonableness or otherwise of an employee’s decision to refuse alternative offers. In the case of Cinders Ltd v Celina Byrne [RPD 1811], the Labour Court referred to the “bona fides” of the employer in their attempts to retain the employee in their employment by means of offering alternative positions.

In the within case I am satisfied that the Respondent acted at all times to retain the Complainant in their employment by offering a series of reasonable options/alternative roles. Having carefully considered the efforts made by the Respondent, in this regard, both at the time of the management restructure and since then, I find the Respondent’s refusal to accept any role offered to be unreasonable. In addition, notwithstanding the fact that I do not consider the Complainant’s job to have been made redundant, I am of the view that her refusal to accept any of the positions offered by the Respondent would, in such circumstances, constitute a disentitlement to redundancy, as set out under Section 15 of the Act.

Consequently, taking all of the above into consideration, I find that the Complainant’s claim for redundancy and/or an exit package is not well founded and is, therefore, rejected.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I cannot find in the Complainant’s favour. Therefore, I am not in a position to issue a substantive recommendation. However, if the Respondent was still in a position to and was still willing to, then I would respectfully request that, subject to normal business constraints, they might make one further, final review to establish if a reasonable alternative post could, at this stage, be offered to the Complainant. In the event that such an offer is made, then I would recommend that the Complainant give serious consideration to accepting same.

Industrial Relations Acts

Redundancy