Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019811-001

17/06/2018

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

CA-00019831-001

18/06/2018

The complainant commenced employment with the respondent on 23/5/2013 as a customer service team leader. She earns €573 gross per week.

She was called to a meeting on 10 May 2018 to examine the continued viability of her role in the customer service department.

She failed to get assurances about the content of the alternative role which the respondent offered to her in the collections/ dispatch department.

She claims that she was unfairly dismissed on 17 May 2018.She seeks compensation.

She submitted her complaint to the WRC on 18 June 2018.

CA-00019811-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The complainant worked as a customer services representative team leader in the collections department.

On 10 May along with her manager she was called to a meeting with the operations director to examine the continued viability of the respondent’s collections department. The operations director advised her that there was a requirement for one job only in her department and that the complainant’s job was no longer necessary and that the role could be fulfilled by the manager. The respondent offered the complainant a position in installations and asked her to respond to the offer by the following day.

The complainant revised her CV and posted it on a recruitment company’s website as she was fearful about her future with the respondent.

After the meeting on the 10 May the complainant telephoned the outgoing team lead in the dispatch department in order to get an insight into the alternative job which the respondent had offered her. She was told that she would have to work 2 Saturdays per month and that there was a lot of pressure in the job. The complainant asked for more time – the weekend -to think further about the offer. She informed the respondent that she could not accept Saturday working as she had family commitments. The operations director confirmed on 14 May that she would not have to work Saturday shifts. A few days later she was asked to commence training for the alternative role in advance of her having accepted the role and in advance of being informed as to what the role entailed.

The complainant submitted her resignation by email on 21 May to take effect on 25 May as the role of CSR Team Leader had been made redundant and that she had found other employment. She contacted the HR department about a redundancy package. She was advised that there was none as she had refused to the job in installations.

She believes that she is entitled to a redundancy package as the respondent made her position redundant and it was not a personal decision on her own behalf to leave. Other staff who were made redundant at the same time as herself received some sort of redundancy package.

She took up alternative employment, earning the same salary within a week of leaving the respondent’s employment.

She asks the adjudicator to uphold her complaint.

CA-00019831-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

This is a duplicate complaint of CA-00019811-001. The facts and evidence are entirely the same.

CA-00019811-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent is in the business of providing engineering solutions to its clients in a diverse range of industries. including building solutions,

Complaint.

The respondent denies that the complainant was unfairly dismissed in circumstances where:

the complainant’s original role was potentially redundant within the meaning of section 7(2) of the Redundancy Payments Act 1967 to 2014 (the “Acts”);

the respondent offered the complainant reasonable alternative employment on the same terms and conditions;

the respondent accommodated the complainant by ensuring that she would not be required to work on Saturdays;

the complainant originally accepted the alternative employment offer, however, later declined having received another job offer; and

the complainant was never placed at risk of redundancy.

Consultation Process

On Thursday 10 May 2018 the complainant and her manager met with the operations director who advised that as a result of the respondent’s restructuring, the complainant’s ’s role was no longer required. He offered the complainant a role as a team lead in the dispatch department on the same terms and conditions as her previous role. The complainant advised that she would consider this role and spoke to the outgoing employee performing the role at the time. On 11 May 2018, following her discussion with the outgoing dispatch team lead, the complainant confirmed that her only concern with the new role was the requirement to work Saturday shifts. Despite the fact that the contract of employment dated 22 May 2013 provided that “shifts will cover hours between 9.00am to 8.00pm Monday to Saturday”, the respondent agreed to accommodate the complainant’s request not to work Saturdays and confirmed to the complainant that Saturday working was unnecessary. The complainant confirmed that on this basis she was happy to start the role on Monday 21 May 2018.

On 18 May 2018 the complainant notified the operations director that she would not be accepting the new role as she had accepted an alternative position in another company. On 21 May 2018 the complainant tendered her resignation, effective from 25 May 2018. In her letter of resignation, the complainant incorrectly categorised the termination of her employment as resulting from redundancy.

On 21 May 2018 the complainant contacted the HR department by phone to enquire as to the amount of her redundancy payment. They advised the complainant she had resigned from her employment and that the entitlement to a redundancy payment did not arise as she had been offered and had refused an alternative position within the respondent on the same terms and conditions.

The complainant had never in fact been placed at risk of redundancy as the respondent proactively identified a suitable alternative and even altered the potential working hours to facilitate a request made by the complainant, albeit that it was not contractually or statutorily obliged to do so.

The Law.

The respondent did not at any point terminate the complainant’s employment. The complainant unreasonably refused an offer of alternative employment from the Respondent and effectively resigned from her employment with the Respondent.

Section 6(1) of the Unfair Dismissals Acts (1977-2015) provides that:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having to all the circumstances, there were substantial grounds justifying the dismissal.

The respondent did not at any point terminate the complainant’s employment. The complainant

refused an offer of alternative employment from the respondent and effectively resigned from her employment.

The complainant has not brought any claim under the Redundancy Payments Act, 1967. However, the Respondent submits that section 15(1) of the Act provides:

(1) An employee shall not be entitled to a redundancy payment if

(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 the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the

termination of his contract, and

(d) he has unreasonably refused the offer.

The respondent complied with the above section in offering the complainant an alternative role on the same terms and conditions. It is submitted that the complainant unreasonably refused the offer.

Even if the failure to accept an alternative role could be interpreted as reasonable, which it is not, before any redundancy could occur the respondent would have to place the complainant at risk of redundancy and provide the appropriate notice as required by law. This never occurred in circumstances where the complainant presumably actively engaged in a recruitment process for an alternative role outside and was successfully appointed to the role. It should be noted that an adjudication officer has no jurisdiction to make a redundancy award under the Unfair Dismissals Act, 1977. As such, and to the extent that this is the relief sought from the Workplace Relations Commission, the claim is entirely misconceived. The complainant’s role was never made redundant. She resigned from her employment with the respondent having obtained alternative employment.

The Adjudication Officer is therefore respectfully requested to reject the complainant’s complaint.

CA-00019831-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

As this is a duplicate complaint the respondent’s submission is identical to that found in CA-00019811-001

CA-00019811-001

I am obliged to establish if the complainant was unfairly dismissed. The complainant maintains that she was dismissed unfairly by reason of redundancy. The complaint is taken under the Unfair Dismissals Act, 1977 and not the Redundancy Payments Acts 1967-2014.

Section 1 (a) of the Act of 1977 defines dismissal as

“The termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of the contract of his contract of employment with his employer , whether prior notice of the termination was or was not given to the employer in circumstances in which because of the conduct of the employer , the employee was or would have been entitled, or it was or would have been reasonable for the employee , to terminate the contract of employment without giving prior notice of the termination to the employer”

Before I address the matter of whether the complainant’s dismissal was unfair as alleged, I must establish that the complainant was dismissed. The complainant did not make out a case that the respondent terminated her employment nor present any evidence of same. Nor did she make the case that the employer’s behaviour was so unreasonable as to leave her with no choice but to resign. Her evidence does not indicate that section 1 of the act of 1977 applied to the termination of her employment. Her complaint is simply that by virtue of her role being made redundant she is entitled to a redundancy payment. The complainant made no case alleging unfair selection for redundancy.

While it is accepted that the respondent opened discussions about the non-viability of the post which she had held, they, at the same time, offered her a job with the same working hours and salary. The obstacle in the way of her accepting this alternative job on the same salary and conditions was the prospect of having to work on Saturdays. The complainant accepts that the respondent assured her that she would not be scheduled to work on Saturdays. The complainant’s ultimate reason for terminating her employment was her view that there was a lack of clarity about her job description. The complainant resigned before exploring the content of the alternative role with the respondent- the party responsible for determining its content. For a dismissal to take place on the basis of redundancy, a dismissal would have to take effect. No such dismissal occurred.

No notice of redundancy was provided to the complainant. I find that she was offered suitable alternative employment. While the complaint is taken under the Unfair Dismissals Act, 1977, the complainant’s entitlement to a redundancy payment even if she had been dismissed is vitiated by virtue of section 15 of the Redundancy Payment Act 1967.

I find that the complainant resigned her employment.

CA-00019831-001.

As this is a duplicate complaint my findings are identical to the findings in CA-00019811-001.

I do not find this complaint to be well founded

Claim for redundancy payment; resignation.