RPD1910

The Complainant was employed by Kayaks and Paddles Plymouth Limited T/A Bantry Bay Canoes as a manger of its Bandon facility between 1 February 2008 and 20 January 2017. On the latter date, the Complainant’s employment transferred to that of the Respondent by operation of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003. The Respondent has premises in Cork, Bandon and Skibbereen.

The Complainant was certified medically unfit for work from May 2017 until 22 May 2018. During the Complainant’s certified sick leave, the Respondent encountered difficulties in managing the Bandon facility. During the busy season in 2017, the business in Bandon was carried on with two locally based part-time staff who were supported by a manager based in Cork. This proved to be inefficient from the Respondent’s perspective. Therefore, the sales function – previously carried on in Bandon – was moved to Cork with effect from October 2017. Bandon appears to have been little more than a storage facility for boats and associated equipment from that time on. The Complainant’s work email addresses were monitored from Cork. The Complainant no longer had access to them or to the business’s Facebook page.

The Complainant notified the Respondent by email dated 21 May 2018 that he had been medically certified as fit to return to work. He attached a medical certificate to that effect along with his email. The Complainant attended the Bandon premises the following day, 22 May 2018, but was unable to gain entry as the locks had been changed on the doors during his absence. There was also a sign on the door stating that Bantry Bay Canoes had moved location to CH Marine in Cork with effect from 7 October 2017.

The Complainant unsuccessfully attempted to contact Mr Bendon by telephoning the Cork office. Later that day, the Complainant emailed Mr Bendon seeking clarification regarding his position with the Respondent. At 5.42 am on 23 May 2018, Mr Bendon sent an email which included the following text to the Complainant:

• “Your job awaits you in Cork. As you are very much aware we were forced to close Bandon, so no idea why you waited outside for two hours knowing this, or why you did not call me.”

• “I appreciate your offer of a position in your Cork branch. However, I do not accept your offer as it would (sic) an unreasonable change in employment circumstances.

  As you have stated this morning the business in Bandon has been closed. I can only assume that you are making my position as the manager of Bantry Bay Canoes in Bandon redundant?”

• “Thank you for your email and clarification on my position.

  The first time you have made me aware of this change in my contract of employment was 5.42 am on the morning of 23^rdMay. Up to this point I was relying on your last communication on the subject with which you categorically stated through your solicitors (sic) letters dated October 24^thand 25^ththat my position in the Bandon store was open to my return and the Bandon store was not closed.

  You have furnished me no other notification of this move being permanent or that I was expected to return to a created position in Cork since this date.

  This is an unreasonable change in the terms of my employment without prior notice or discussion, let alone the fact that it will double my commute time each day.

  As you have categorically stated that my position has not been made redundant, you have left me no choice but to give notice of termination of my contract of employment with immediate effect.”

Submissions

The Respondent submits that there was no act on its part which operated to terminate the Complainant’s employment and that it, therefore, follows that he is not entitled to succeed in his claim under the Act. It further submits that the Complainant resigned his employment in circumstances where his position as manager of the Bandon store still existed. Ms Cahill BL opened the determination of the Employment Appeals Tribunal inCollins v Excel Property Services Limited(31 December 1998) to the Court in support of the Respondent’s defence to the within claim.

The Complainant accepts he resigned his employment but did so in circumstances where it had been communicated unequivocally to him by Mr Bendon that the only position open to him on his return from long-term sick leave was to be based in Cork. Had he accepted that position, his commuting distance to and from work would have doubled. The offer of employment in Cork was, in the Complainant’s submission, not a reasonable alternative to the position he had held for over ten years in Bandon.

The Law

Section 2 of the Act contains the following definition of ‘date of dismissal’:

• “’date of dismissal’, in relation to an employee, means—
  • (a) where his contract of employment is terminated by notice given by his employer, the date on which that notice expires,
    (b) where his contract of employment is terminated without notice, whether by the employer or by the employee, the date on which the termination takes effect, and
    (c) where he is employed under a contract for a fixed term, and that term expires without the contract being renewed, the date on which that term expires,
  and cognate phrases shall be construed accordingly”.

• “9. Dismissal by employer
  (1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if–
  • (a) … or
    (b) .. or
    (c) the employee terminates the contract under which he is employed by the employer in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer's conduct.”