ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017884
Parties:
| Complainant | Respondent | |
| Anonymised Parties | Cleaner | Cleaning Service Company |
| Representatives |
Complaint:
| Act | Complaint/Dispute Reference No. | Date of Receipt |
| CA-00023038-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance withSection 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
| The Complainant is seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act 1967- 2014 and has submitted that she did not receive any redundancy payment. |
Summary of Complainant’s Case:
| The Complainant commenced employment with a cleaning services agency on the 17th November 2008 and her contract provided she would not work less than fifteen hours per week and her gross pay was €312.00 per fortnight. It was noted that the Complainant does not access to a car and is a reliant upon public transport to commute to and from work. Initially, the Complainants employment was based between Dublin City Centre and North Dublin. The Complainant moved to County Kildare in 2010 and her employer facilitated her by transferring her to a site that was easier for her to travel to in Dublin 8. The Complainant continued to work on this site until 2014 whereupon she then moved to a site in Dublin 2. On or about the 20th April 2016, the Complainant was informed that the cleaning contract for the Dublin 2 site was transferring to another cleaning company, in this instance the Respondent Company. Accordingly, the Complainant transferred to the Respondent Company under the TUPE scheme on or about the 13th May 2016. The Complainant continued to work on the Dublin 2 site until the 15th June 2018. The Complainant explained she had been informed by one of the staff members of the Dublin 2 site, a few days previously, that they were moving to new premises and these new offices had a cleaner on site so her services would not be required. The Complainant had not been informed of this development and was shocked and upset. The Respondent, according to the Complainant, apologised for not telling her about this change but offered her similar work on a site in Dublin 12. The Complainant upon verifying the location of the Dublin 12 site discovered that it would take two buses and a walk of approximately 1.5 km for her to reach this site and she would be working ten hours. The Complainant informed the Respondent Company that she did not believe this was a reasonable alternative due to the nature of the commute and the reduced hours. The Respondent Company replied they would endeavour to offer her work when it was available and closer to home. On the 19th June 2018, the Respondent Company offered the Complainant work on a Dublin 2 site from 7:00am to 9:00am three days per week. The Complainant explained that the start time for this job would require her to arise at approximately 4:30am in order to take public transport commencing at 5:30am. The Complainant, in these circumstances, did not think this was a proper alternative and asked for a more reasonable offer. The Complainant did not receive any more offers of work from the Respondent Company and on the 27th August 2018 wrote to her employer notifying of her intention to claim redundancy and enclosed the RP9 form. On the 28th August 2018, the Respondent Company offered her work in either Dublin 1 or Dublin15 from 7:00 am to 9:00am. The Complainant explained that the Dublin 1 site would require a very early start and would be in the dark during the winter months which she did not regard as safe. The Complainant did not regard the Dublin 15 site a suitable as it would require approximately 4 hours of travel for 3 hours of work. Following this response , the Complainant did not receive any further offers of work and wrote to the Respondent Company on the 25th September 2018 requesting a redundancy payment and enclosing the RP77 form. The Respondent Company replied on the 2nd October 2018 stating they did not agree with the Complainants claim of being made redundant because she had been offered work and refused it. The Respondent Company returned the RP77 form and indicated they would continue to offer the Complainant work. It is submitted that when looked at subjectively, there were genuine and reasonable reasons behind the Complainants refusal of the proposed offers and therefore she should not be disentitled to a redundancy payment on the basis of refusing those offers. It is further submitted that the Complainant is entitled to a redundancy lump sum payment under Section 7 of the Redundancy Payments Acts 1967-2015 as her employment ceased by reason of the redundancy and she was subjectively reasonable in refusing the proposed alternative offers put forward by her employer. This Complaint was received by the Workplace Relation Commission on the 5th November 2018. |
Summary of Respondent’s Case:
| The Respondent Company accepts the timeline in relation to the Complainants employment and the correspondence referred to above.In the course of their evidence, the Respondent Company provided a copy of the contract of employment with the Complainant and specifically referred to the paragraph in relation to changes to terms and conditions wherein it states that the company reserves the right to vary terms and conditions of employment as is deemed to be necessary. Individual variations will be discussed fully prior to implementation. Where appropriate, all attempts will be made to provide suitable notice of any variations.On the 15th June 2018, the Respondent Company in replying to the Complainant clarified that her “contract of employment is not site specific as it is for All cleaners and All security within the company, no employee is contracted to work on a site permanently due to the nature of the business and if a contract is lost then an employee will be offered shifts on another site.. you have not been dismissed from work, rosters will be offered to you in alternative sites” On the 19th June 2018, the Respondent Company in replying to the Complainant “understood that its frustrating as you live in Count Kildare, if there are hours close to where you live then I can assure you that we will offer them to you .. we will continue to offer you work and it is available.” In relation to the various sites offered (Dublin 1, Dublin 2 and Dublin 15) the Respondent Company provided google map printouts demonstrating commute times for the Complainant from her residence in County Kildare of 1hour and 5 minutes, one hour and six minutes and one hour and 56 minutes respectively. On the 31st August 2018 the Respondent Company in response to the Complainants phone call wherein she said everything was “too far” reiterated that they have full time work for her in Dublin 22 and part time in Dublin 15 and when they checked the bus schedule they believed only one bus was required to travel. They concluded by saying that they have work available and the Complainant has to decide if she wants to take it and they can’t force her to come to work. On the 28th September 2018 the Respondent Company emailed the Complainant to indicate that they had given her a roster in the city centre and would marry the shift times with another to make more hours available but she had refused same as she preferred office work. Further, 8 different jobs have been offered and refused and excuses made each time. Ultimately, as per the letter of the 2nd October 2018, the Respondent Company disagreed with the Complainants claim that she has been made redundant. Further, the Complainant has been offered work within a reasonable distance from her residence and of reasonable hours but same has been refused. The Respondent Company continues that it was explained on numerous occasions that work would be offered in her locality but at this juncture none was available and as her contract is not site specific work was offered elsewhere and this is the nature of the business and is outside of their control. The Respondent Company concluded that they will continue to offer the Complainant work on a regular basis and it is available.The position of the Respondent Company is that, as the Complainant refused the offer of reasonable alternative employment from the Company, she is not entitled to any redundancy payment. The Respondent Company indicated, at the conclusion of their evidence, that there was work still available for the Complainant and they would endeavour to facilitate her. |
Findings and Conclusions:
| In the course of this hearing, I have carefully listened to the evidence tendered in the course of this hearing by both parties.Section 7(1) of the Redundancy Payments Acts 1967-2015 (herein, the Acts) provides:“An employee, if he is dismissed by his employer by reason of redundancy or laid off or kept on short time for a minimum period shall, subject to this Act, be entitled to a payment of monies which shall be known (and/or in this Act referred to) as a redundancy payment. . . “ Section 7(2)(a) of the Acts further provides that:“. . . employee who is dismissed shall be taken to be dismissed by reason of redundancy, if for one or more of the reasons not related to the employee concerned the dismissal is attributed wholly or mainly to(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purpose for which the employee was employed by him, or has ceased or intends to cease, or carry on that business in the place where the employee was so employed.”Section 15(2) of the Acts provide a basis on which an employee is not entitled to a statutory redundancy payment: “An employee who has received the notice required by section 17 shall not be entitled to redundancy payment if in the period of two weeks ending on the date of dismissala) His employer has made him in writing an offer to renew the employee’s contract of employment or 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 employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before,c) The offer constituting an offer of suitable employment in relation to the employee, and d) The renewal or re-engagement would take effect not later than four weeks after the date of termination of his contract, ande) He has unreasonably refused the offer”In the circumstances of this matter it is submitted that the Respondent Company’s interpretation of what is reasonable when considering an alternative position was effectively erroneous. The offer of alternative employment was not on the same terms and conditions of employment, including the place of work and hours of work and therefore the issue which arises is whether the position at the various Dublin sites were suitable employment in relation to the employee. It is a well-established that when considering an alternative position offer, that the reasonableness of the employee’s decision must be look at two-fold. First, the offer made by the employer must be looked at objectively and, second, the decision of the employee must then be look at from a subjective stand-point. This position has been clearly set out in Employment Law, Second Edition at [19.123], where it states:. . . the question of suitability may be determined objectively, whereas the reasonableness of the employee’s refusal is subjective and must be considered from the employee’s perspective. Thus the employee’s perception of the alternative job must be taken into account. In Executors of Everest v Cox it was found that:The employee’s behaviour must be judged from her point of view, on the basis of the facts as they appeared, or ought reasonably to have appeared, to her at the time the decision had to be made.The English EAT case of Hudson v George Harrison ltd shows that the arbiter of fact, before making a decision on the reasonableness of an employee’s decision to refuse to take up an alternative position can look at the employee’s personal circumstances. Before quoting the above-mentioned quotation from Executors of Everest, the EAT stated that, “the s 141 (2) question involves taking into account the personal circumstances of the employee. The test is not wholly subjective, but it includes taking into account those personal circumstances”It is submitted the alternative position offered to the Complainant was not a viable alternative on an objective basis. The alternative position had different working hours, convenience and different public transport arrangements and the positions were in a different geographical location. These changes clearly represent a change in the terms and conditions of the Complainant’s employment. As noted within Meehan’s Employment Law at [21-31], “an example of ‘different terms and conditions’ would be a change in location.” Therefore, the changes mentioned can only be seen as a substantial change in the Complainant’s position and employment which would have had a severe effect on her personal and professional life. In addition, in An Office Administrator v An Employer the Adjudication Officer-in considering whether a reasonable alternative position had been provided- examined whether “inconvenience” was placed upon the employee. If, I am satisfied the position offered to the Complainant was reasonable, in assessing the Complainant’s refusal of the alternative position, then I must take into account the Complainant’s subjective view and personal circumstances.In Joyce v Duffy Meats Ltd t/a Kerry Foods the EAT held that the employee had not been unreasonable in refusing three different alternative positions offered by the employer. In this case, two of the positions involved different hours than the employee had previously worked and the nature of the work was different in respect of the third position In, a WRC decision, A Former Project Co-Ordinator v A Utility Services Company the Adjudication Officer, in finding that the employee had not been unreasonable in refusing an alternative position, considered the way in which such a case should be assessed: I must assess the factual matrix subjectively to determine whether the Complainant’s refusal . . . was reasonable. This requires consideration of the matter from the Complainant’s point of view taking into account the factors personal to him as outlined in his evidence above, to determine whether his refusal was a reasonable response.It is noted that the Adjudication Officer in the above-mentioned decision also quoted the English decision in Cambridge & District Co-operative Society Ltd -v- Ruse. The Adjudication Officer in A Former Project Co-Ordinator held that:the English EAT has provided some useful guidance in relation to the appropriate test in Cambridge & District Co-operative Society Ltd -v- Ruse [1993] I.R.L.R. 156 at 158, when considering the similarly worded provisions of the British legislation, holding that the question of “the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”. In the circumstances of this matter and given the difference in the locations, different start and finish times, different hours, different work environment and different public transport arrangements, the Complainant would be clearly inconvenienced by the alternative positions which were not objectively reasonable. The Respondent put forward offers which were not on the same terms and condition of employment and were designed to unlawfully deny its obligation to discharge a redundancy lump sum payment to the Complainant. I accept that the contract under which the Respondent provided cleaning services to the Dublin 2 site ceased and effectively the contract on which the Complainant was worked for 4 years provides prima facie evidence of an entitlement to a statutory redundancy payment as prescribed by section 7 (2)(a) of the Redundancy Payments Acts 1967-2015. It is submitted that the different hours the Complainant would have to work must be considered in the same manner as in the Joyce case as mentioned above. It is appreciated that the Respondent will suggest that the change in hours was, objectively, minor. However, it is the subjective nature and the impact on the Complainant which must be considered. The impact of the change in hours for this Complainant, however small, would have had a significant, adverse effect. In this respect, I note that the Irish employment fora have consistently applied a subjective test to the reasonableness of an employee’s refusal of alternative employment.I determine the Complainants case is well founded and the Complainant is entitled to a redundancy lump sum payment pursuant to section 7 of the Redundancy Payments Acts 1967-2015 as her employment was ceased by reason of redundancy. The offer of an alternative position was not objectively reasonably and the Complainant was subjectively reasonable in refusing this offer. I direct the Respondent to pay the Complainant her statutory redundancy payment based on her normal weekly wage of €156.00 and based on her continuous service from November 2008 until September 2018. |
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
| I find that the Complaint (CA-00023038-001) made pursuant to Section 39 of the Redundancy Payments Act 1967 is well founded and direct that the Respondent Company pay her statutory redundancy payment. |
Dated: 1st May 2019
Workplace Relations Commission Adjudication Officer: Michael Ramsey
Key Words:
| Redundancy |