Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030823-002

09/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030823-003

09/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030823-004

09/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00030823-006

09/09/2019

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

CA-00030823-007

09/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030823-008

09/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030823-009

09/09/2019

At the outset of the hearing, the complainant withdrew the following claims CA-00030823-002, CA-00030823-003, CA-00030823-004, CA-00030823-006, CA-00030823-008, CA-00030823-009. The complainant confirmed that her preferred option was the complaint before the WRC which relates to Section 39 of the Redundancy Payments Act, 1967- CA-00030823-007.

The complainant was employed by the respondent since January 2012 and her place of work was Capel St. Dublin 2. She states that while she was aware that the lease in the Capel Building had to be surrendered and that the option of moving to Delgany/Greystones was talked about in the office there were also many other options discussed for possible relocation. The complainant states that another unit in Capel Building was considered and also a building on Inns Quay, Dublin 2. The complainant submits that in 2019 when it was decided that the respondent relocate to Greystones, it was stated in general conversation that it would be considered for the complainant to work there. The complainant states that it was clearly stated to her that no decisions would be made until a lease from a premises was signed.

The complainant submits that unfortunately in May 2019, her personal circumstances changed and two main factors prevented her from accepting a position in Greystones. The complainant stated that the company was always aware of this. The complainant states that she had an accident in their family car which impacted her decision to drive to Greystones and her daughter was diagnosed with an eating disorder which required weekly visits to hospital and still does today.

The complainant contends that a premises was secured in or around May 2019 for Greystones and a lease was subsequently signed in June 2019. The complainant states that once this lease was received and signed it was then she brought to the attention of J, the Director’s daughter that accepting a position in Greystones was proving difficult and the complainant explained the reasons for same to her. The complainant states that she was unable to drive the family car such a long distance after an accident and in order for her to take public transport would involve a 4 hour journey a day, 2 hours each way. The complainant states that she spoke to J on two or more occasions in June and again on 1 July. It was then that J asked the complainant to speak to the Director and confirm this with him. The complainant states that on Monday night 1 July, she noticed a job advertisement on the Internet for the respondent organisation in Greystones. The complainant states that she presumed her position was accepted by the company.

The complainant stated that she gave the Director a note regarding her position and the Director spoke to her on Wednesday 3 July. The complainant states that the Director stated that it was fine that she could not accept a position in Greystones but asked was there any way she could assist him as his daughter J was very stressed at the present time. The complainant states that she agreed to assist them and asked what was required of her in that regard. The complainant states that she became very concerned about her position and contacted the Citizens Advice Centre for information. She states that she confirmed to them that the place of business where she was employed was closing down and moving to a different location.

The complainant states that while the respondent states that travelling expenses were offered to cover the cost of travelling what was not taken into account was the fact that she had no car to do this. She states that public transport was her only option if she decided to relocate. Secondly, she states that while she was offered reduced hours for the same salary what it failed to take account of was the fact that she would be now spending more time travelling and less time to complete her work. The complainant contends that she would now be travelling for 4 hours or more per day and would now have to complete an 8 hour shift into 5.5/6 hours and this would have increased the pressure considerably. However, none of this was confirmed to her by the respondent in writing. The complainant states that with reference to the laptop, this was taken back during the month of July. The complainant confirms that it was requested by J (Director’s daughter) to assist the company for August/September to train staff etc. However, the complainant states that she pointed out clearly in her email she sent that she could only assist until 23 August but she said that her e-mail was never responded to.

While the company states that the complainant was incorrect to state that public transport took   4/4.5 hours, she states this is actually correct. The complainant can attest to this as she tried and tested it for 8 days during the month of August. The complainant states that there was never an issue with her not accepting a position in Greystones. The complainant reiterated that the Director confirmed to her that it was fine if she could not work for him in Greystones. The complainant states that things only became an issue when she raised the matter of her entitlements regarding redundancy. The complainant states that the respondent advised her that he sought advice on the matter and the advice was that the complainant was not entitled to same. The complainant informed the respondent that she got advice from the CIC and was informed that she was entitled to redundancy.

The complainant states that she continued to assist the company with staff and workload and on the week commencing Monday 19 August, the Director asked her whilst standing at the photocopier was the journey getting any easier to which she replied no. The complainant states that the Director would speak to her the next day, go for lunch and discuss matters. The complainant states that she travelled to Greystones on Tuesday 20 August and worked as normal while she waited for the Director to go for lunch to discuss matters, however the Director left for lunch on his own. The complainant states that she was quite upset and proceeded to leave the office at 3.50 pm. She states that she bumped into the Director while leaving the office and they had a short discussion in the hallway. The complainant states that the Director informed her that he did not feel she was entitled to redundancy but offered her one month’s salary as a goodwill gesture and indicated to her that it would be better accepting this as anything she received would be taxed and she would be left with nothing. The complainant informed him that she knew what her entitlements were and that statutory redundancy was not taxable.

In conclusion, the complainant states that she clearly pointed out to the Director that she could not accept a position to the new location and continue to work for reasons already outlined above and she states that she was of the firm opinion that the Director had accepted this. The complainant states that she is entitled to a redundancy payment from the respondent organisation.  

The respondent who was based in Dublin stated that it always had a business connection in the Wicklow area for many years in Bray and in Greystones which the complainant was aware of. The respondent submits that the nature of the employee/employer relationship was very casual/friendly. The respondent asserts that they all got on well together and had an excellent working relationship. It states that consequently it did not feel it necessary to confirm in writing what was happening as the complainant was well informed verbally of all decisions in respect of the relocation and had known the plans for quite some time. The respondent states that as soon as a decision was made, the complainant was informed and was always fully aware of the relocation of the office to Greystones and the date of the relocation.

The respondent submits that the complainant had made it very clear that she was happy to work in Greystones and wished to remain in employment with the company. The respondent contends that as far as it was concerned, the complainant’s position was extremely important as Legal Secretary and her position was always available to her. The respondent maintains that once the lease was signed the complainant expressed concern that continuing her employment in Greystones might prove more difficult due to her own personal reasons but she re-iterated that she was prepared to give it a go. The respondent submits that they have always had every empathy with the complainant in respect of personal matters throughout her employment, however they cannot be responsible for an employee’s personal circumstances.

The respondent states that it is of the view that the complainant by choosing not to continue in her employment, she effectively resigned her position. The respondent submits that the complainant in deciding not to continue to work with the company put them in a very difficult position as they had to try and source an experienced replacement for her along with other employees within a very short time frame. The respondent states that it cannot be responsible for the complainant’s personal circumstances for example, her inability to drive a car as it was too big, nevertheless, it did offer to help where possible. The respondent states that reference to the job advertisement had nothing to do with the complainant’s position in the firm. It states that the complainant knew quite well that the company needed additional employees to assist her and bring the dictation up to date, which was openly discussed in the context of the office work load even prior to the move to Greystones.

The respondent states that it had discussed about the complainant assisting with the move and in particular to assist with training in any new staff that would be employed. The respondent submits that it was discussed and clearly understood that the complainant would work for the month of August and September to see how things went. The respondent states that in fact the complainant only worked about seven days for the month of August at hours which suited her, even though she was paid for the full month. The respondent submits that she didn’t work at all in September. The respondent contends that they all got on extremely well together and had an excellent working relationship. The respondent contends that the complainant was well informed verbally of all decisions in respect of the relocation and had known the plans for quite some time. The respondent maintains that the complainant was aware the move was taking place on 2 August and that there would be no point in her coming into the office that day as there would be no computers and the office furniture was being dismantled by the removal company, however the complainant was paid a full day for 2 August.

The respondent states that if the complainant chose to use public transport, there were several options available to her and the office is conveniently located 2 minutes walk from Greystones train station. The respondent submits that the additional travel time is only relevant from Dublin City Centre to Greystones as the complainant was already commuting to Mary’s Abbey each day. The respondent states that it was prepared to compensate her for the additional travel time by means of reduced working hours/flexi time, with no reduction in salary which it feels was fair. The respondent states that a laptop was available to employees when needed to facilitate working from home.

The respondent states that it has always paid all entitlements to employees without any issues. The respondent further states that having sought advice, it was told that as the complainant’s position did not cease to exist and consequently, no redundancy situation arose. The respondent states that the complainant was paid a full salary for the month of August which included the balance of her annual leave entitlement being 4 days. The respondent further submits that the complainant did not accept the offer of one month’s pay in lieu of notice.          

The complainant has brought a claim under Section 39 of the Redundancy Payments Act, 1967, CA-00030823-007 stating that she is entitled to redundancy from the respondent.

Having considered the evidence from both parties, I note that the complainant was employed by the respondent since January 2012 and her place of work was Capel Street, Dublin 2. I note that a lease was signed in June 2019 to relocate the business to a premises in Greystones, Co. Wicklow. Having carefully considered the matter, in my view, the move from Capel Street to Greystones was a fundamental and significant change to the complainant’s terms and conditions of employment. While the complainant did travel to the new location for a few weeks during August, she found the journey of 2 hours each way very long and given her family and personal circumstances came to the view that it would not work out. I am cognisant that the respondent stated at hearing that he offered her reduced hours/flexi-time and the option of having a laptop and working from home on occasion, however there was nothing set down formally relating to this matter.

Overall, having considered the matter, I am satisfied that given the fundamental and significant change in the complainant’s terms and conditions of employment and her inability to relocate to the new premises, she is entitled to redundancy from the respondent organisation. The complainant commenced with the respondent in January 2012 and her last day at work was 23 August 2019. The complainant’s gross monthly pay was €2876.66.

I find that the complainant’s claim in respect of the Redundancy Payment’s Act is well-founded. The complainant is entitled to a Redundancy payment as follows;

Date of commencement of employment: 10 January 2012

Date of cessation of employment: 23 August 2019

Gross monthly pay: €2876.66.

Any award under the Redundancy Payments Act is subject to the complainant having been in insurable employment for the relevant period under the Social Welfare Acts

Redundancy payment