Complainant

Respondent

Anonymised Parties

A Production Team Leader

A Dessert Manufacturer

Representatives

 Solicitors

IBEC

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-00020409-001

08/07/2018

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

CA-00021434-001

28/08/2018

The complainant has been employed by the respondent since 2010. The complainant’s role is that of a Production Team Leader. The complainant has a contract of employment requiring her to work 40 hours per week at a rate of pay of €10 net per hour. The complainant is seeking redundancy entitlements in circumstances where the respondent changed the location of its business and the complainant deemed the new location as unsuitable.

Note: There were two complaint applications submitted in relation to the complainant’s redundancy entitlements. The substantive decision on the issue is being made under complaint application CA-00020409-001. Complaint Application CA-00021434-001 is a duplication of the substantive complaint.

The complainant was on Maternity Leave from February 2016 until August 2016. In August 2016 she began a period of sick leave and remains unfit to return to work. The complainant’s confirmed that during her absence the Company moved from its premises in Dublin 12 to new premises in Naas, Co Kildare. The complainant stated that she sought her redundancy entitlements in May 2018 on the basis of the unsuitability of her new work location. The complainant is aware that sick leave in excess of 26 weeks cannot be counted as reckonable service for the purpose of redundancy calculations.

The complainant stated that the respondent had moved its operations in excess of 26 kilometres away from her previous work location. The respondent stated that in the previous location, she could cycle to work or walk in approximately 30 minutes. The complainant stated it previously took approximately 7 minutes for her to get to work by car.

The complainant stated that the new work location is 26kms from the previous location and would require significant additional travelling time and would also involve additional travelling and childcare expenses.

The respondent stated that it had notified the complainant that it was moving premises and had invited her to attend a meeting by letter dated 24th January 2018 in relation to updating her on what was happening in the Company and in relation to the prospect of her returning to work. The respondent also subsequently requested that the complainant attend an Occupational Health appointment due to her length of absence.

The respondent stated that when it received a redundancy request from the complainant, it confirmed that as the role had not been made redundant, it would not be in a position to provide a redundancy payment to her. The respondent confirmed that all other staff had moved to the new premises without issue and that it considered the new location to be within a reasonable distance.

The Applicable Law

Section 7(2)(a) of the Redundancy Payments Act, 1967 provides as follows:

7 (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, or

In the instant case, the employer changed work location and its new premises were located in excess of 26 kms from the previous location. The complainant provided details in relation to the additional travelling time and expenses that she would incur due to the additional distance.

Assessing the suitability of the new work location is a subjective test and a matter for the complainant to consider. The complainant decided that the distance was excessive and that the new work location was unsuitable for the reasons stated.

There is significant legal precedent on this issue concerning offers of alternative employment and the suitability or otherwise of new work locations. Such cases include Earley v Floorstyle Contracts Limited RP382/2003, Wybrant v MKB Catering Limited RP511/2012, Finnegan v Finnegan McKenna RP979/2009, Murphy v Orbit Security Ltd RP597/2012 and Fitzpatrick v Greenbury Ltd, RP 703/2012.

In all of the circumstances of this case, I find that the complainant acted reasonably in deciding that the new work location was unsuitable.

Note: The complainant’s reckonable service for redundancy calculations ended 26 weeks after she went on sick leave. Accordingly, for redundancy calculation purposes the complainant’s service ended on 28th February 2017. The complainant stated that she was unaware that the Company had moved until approximately April 2018 as she had not received the respondent’s correspondence in January 2018. The complainant subsequently sought her redundancy entitlements in May 2018.

Having considered the submissions of both parties, I declare that the complaint is well founded. The complainant is entitled to a redundancy payment as follows:

Date of commencement of employment: 17th September 2010

Date of cessation of employment: 28th February 2017

Net Weekly rate of pay: €400.00

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