ADJ-00019728

Complainant

Respondent

Anonymised Parties

Cleaner

Food Distributor

Representatives

Niamh McGowan BL & Ann Conlon BL, HilaryO'Connorof Maurice Leahy Wade & Co, Liz Cullen,

Jamie McAuliffeof Donal T. McAuliffe & Co. Emer Fennell

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-00026047-001

05/02/2019

The Complainant was employed as a Cleaner from 23^rd November 2006 to 1^st February 2019. She was paid €596.08 per week. She has claimed that her position was made redundant and the Respondent failed to pay her statutory entitlements to redundancy. 

The Complainant commenced employment as a General Operative but for the last five years of her employment she worked exclusively as a Cleaner and exclusively on the night shift. Her position is that she had a permanent contract as a night cleaner and that can only be changed by agreement.  On 25^th September 2018 she was told that the night cleaning operation was due to cease in order to save costs. It is her position that Sec 7(2)b) of the Redundancy Payments Acts applies in this case. This meant that the Complainant’s position ceased to exit and she was entitled to a redundancy payment. The Respondent rejected this. She was asked to transfer to day duties and to combine the role of cleaner with a vegetable packing role at a lower rate of pay. Night working suited her as she has a difficulty sleeping and she also had a day job to supplement her income. This offer of daytime working could not be deemed suitable alternative employment. So, her refusal was entirely reasonable. She cited Cambridge & District Co-Operative Society Ltd v Ruse [1993] IRLR 156 in support. The Respondent described what was happening as a mere roster change. This is a misunderstanding of the Act. At a meeting on 15^th January 2019 the Respondent alleged that she had been offered an alternative night shift role in QC /Transport Administration. She accepts that a manager had mentioned in passing that there might be a QC/Admin role, but it was never formally offered. This was not, in any event, a suitable alternative as she does not have computer skills and her English language skills are insufficient to carry out the role. She had been on certified sick leave and this extended it further as the Respondent refused her the right to return to night work. She wrote to the Respondent on 22^nd January 2019 She did not get a response. She then submitted a claim to the WRC on 5^th February 2019. On 6^th February the Respondent formally made an offer of the QC/Admin post, which she was unqualified for. The Complainant responded requesting her P45 and holiday pay, which she got. She has the requisite service and insurable employment for Social Welfare purposes. She is entitled to statutory payment of €14,902. She is seeking a finding that she is entitled to statutory redundancy payment.  

It is the position of the Respondent that a Redundancy situation does not arise in the current

circumstances. The Respondent contends that the re-rostering of the night time cleaning schedule is

allowed for under the Claimant’s contract of employment and in accordance with the staff handbook. Notwithstanding that the Respondent has consulted extensively with the Claimant and has noted her reluctance to move back to hours rostered during daytime. In that regard the Respondent has offered the Claimant alternative night time work, on better terms with no loss of status as a Night QC/Administrator. The Claimant has stated in correspondence that she is not interested in this role and that only an offer of Night Cleaner will suffice. It is the Respondent’s position that once an offer of reasonable alternate employment is offered, which does not entail a loss of status or pay, that a redundancy situation does not arise. The role of Night QC/Admin is filled almost exclusively by general operatives and as such is not beyond the competence of the Claimant, similarly other night time cleaners have taken up this role with little difficulty. The Claimant has stated from the inception of the re-rostering process that the changes triggered a statutory redundancy unless a role as a night time cleaner could be offered to her. The Respondent contends that the re-rostering of the Claimant’s start times does not render her role redundant on account of the fact that it is allowed for under the Claimant’s contract of employment as a general operative, notwithstanding that the Respondent has sought to accommodate the Claimant by offering suitable alternate employment on better terms, the Claimant has never engaged with this offer.

Therefore, it is the Respondent’s position that this is a constructive dismissal claim and the Complainant has not met any of the benchmarks to substantiate such a claim. She never properly engaged with them and from the outset all she wanted was redundancy. This claim is rejected.

I note that the Respondent decided to close the night cleaning operation in order to save on costs.

I find that the Respondent has a right to re-organise its business as long as it deals with the personnel implications of such a change.

I note that the Respondent initially suggested a change back to day cleaning, but this was rejected.

I find that the Complainant was within her rights to decline the day time job as she has been doing the night shift for about five years.

I find that this was not a reasonable offer of alternative employment.

I note the conflict of evidence regarding the alleged offer of the QC/Admin role on the night shift.

On the balance of probability, I find that the Complainant was informally offered the QC/Admin role. I note that she confirmed this at the meeting on 15^th January 2019.

I find that the Complainant declined this job as she had no computer skills and had very poor English.

I find that if this was a meaningful offer the Respondent should have arranged to place the Complainant with a colleague to ‘try it out’.

I find that there was no such an arrangement which convinced me that this was an informal offer at best.

I find that this was not a suitable alternative offer of employment.

I note that the Respondent has focussed on this case as being a constructive dismissal.

I find that this is not a constructive dismissal case.

I find that the Complainant’s position ceased to exist in September 2018, where the Respondent closed down the night cleaning.

I find that it was appropriate that the Respondent would seek suitable alternative employment.

I did not find any offer of suitable alternative employment.

I find that the Respondent has not met the reasonableness test.

Therefore, I find that a genuine redundancy situation has arisen.

I find that the Complainant’s start date was 23^rd November 2006 and the termination date was 1^st February 2019, her rate of pay was €596.08 per week and 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.

Non-payment of statutory redundancy