RPD198

The late Ms. Kenny, ‘the Complainant, worked for Noonans, ‘the Respondent’, from June 1990 to June 2017. In all that time she worked at a Pharmaceutical Company’s premises in Swords, Co. Dublin for which the Respondent had the cleaning contract. Her hours of work were 5 am to 1 pm on Monday to Thursday and from 5 am to 12 noon on Friday. Her earnings at the time she ceased to work were €11.15 per hour or €434.85 per week. She also had the facility of free car parking at the Pharmaceutical Company’s premises.

In April 2017, the Complainant was advised that the plant was closing at the end of June 2017 and that there was a risk to her of redundancy unless alternative options could be found. At a consultation meeting in May 2017, the Complainant indicated that her preferences were to work in either Swords or Balbriggan.

Two alternative job possibilities were identified by the Respondent, one that was in neither preferred location and the other in The Pavilions, a large shopping centre in Swords. This latter post involved work commencing one hour later than the Complainant’s existing role, at 6am, and concluding each day at 2pm.

The facility of free car parking was not addressed by either party in these discussions.

The Respondent states that this alternative role was offered on the Complainant’s existing terms and conditions. This is disputed by the Complainant’s representatives. A letter to the Complainant refers to a rate of pay at €10.05 per hour rather than her existing rate of €11.15 per hour. The Respondent states that this was an error, that the Complainant was advised that it was an error and a hand written correction in the copy of the letter provided to the Court shows the rate of €11.15 per hour.

The Complainant stated that the post offered to her would be unsuitable for her as she had a long-standing arrangement to collect her grandson from school in Balbriggan at 2.15pm, which would be impossible if she could not finish work until 2pm.

The offer was put to the Complainant again at a meeting on 26 June 2017 and the minutes record her as saying ‘I won’t be accepting this offer, too upset, different area’. The Respondent indicated to her that they believed this to be a reasonable employment alternative and, therefore, she was not eligible for redundancy. The Complainant gave a letter of resignation, the alleged circumstances of which form part of the arguments adduced by her representative, see below.

The Complainant brought a claim under the Redundancy Payment Acts 1967 to 2015 to the Workplace Relations Commission, (WRC). The Adjudication Officer, (AO), found in favour of the Complainant as, in the view of the AO, the fact that the hours of work were crucial to her made it reasonable for her to decline the alternative offered.

Sadly, the Complainant died on 17 June 2018 and the Respondent’s appeal to this Court passed to her Personal Representative, Shane Kenny.

Schedule 2 of the Acts provides for such situations and for ease of reference the relevant text is included here, as follows;

21. Subject to the preceding provisions of this Part, in relation to an employee who has died—

• (a) any reference in this Act to the doing of anything by, or in relation to, an employee shall be construed as including a reference to the doing of that thing by, or in relation to, any personal representative of the deceased employee, and

  (b) any reference in this Act to a thing required or authorised to be done by, or in relation to, an employee shall be construed as including a reference to anything which, in accordance with any provision of this Act as modified by this Part (including subparagraph (a)), is required or authorised to be done by, or in relation to, any personal representative of his.

  22. Any right to a redundancy payment which had not accrued before the employee's death shall devolve on his personal representative.

  23. In relation to any case where, under any provision contained in Part II of this Act as modified by the preceding provisions of this Part, the Tribunal has power to determine that an employer shall be liable to pay to a personal representative of a deceased employee either—

  (a) the whole of a redundancy payment to which he would have been entitled apart from another provision therein mentioned, or

• any reference in paragraph 22 to a right to a redundancy payment shall be construed as including a reference to any right to receive the whole or part of a redundancy payment if the Tribunal determines that the employer shall be liable to pay it.

Respondent’s arguments

The Respondent makes every effort to avoid making staff redundant and did so in this case.

The Complainant was offered the chance to work in the same town in premises that were actually slightly nearer to her home and with a minimum of inconvenience to her.

Despite some confusion regarding her pay rate, it was clarified to the Complainant that she would maintain her existing terms and conditions of employment.

The Redundancy Payment Acts are not applicable. The Complainant was not made redundant. She kept her job with the Respondent despite the fact that the site in which she had worked was closing down.

In choosing not to make herself available for alternative deployment, the Complainant did so in full knowledge that she was excluding herself from eligibility for redundancy.

Regrettably, the Complainant chose to cease working for the Respondent as she did not wish to reorganise her personal arrangements.

The Respondent is aware that this is a sensitive matter, given that the Complainant has since passed away. However, the WRC outcome has a major potential impact on a company that provides services under contract to clients in many different locations in an industry that requires mobility clauses to be applied.

It was not reasonable for the Complainant to refuse the offer of alternative work that was made to her. In the case ofCinders Ltd. V. Celina Byrne-RPD 1811the Court was clear that reasons for a refusal of alternative work should be work-related and not personal. Matters that are outside of the employer’s control arise throughout the employment period and if these were to form the basis for refusal of positions, it would open the floodgates to claims of positions not being suitable. It is the established norm in the cleaning industry to apply the mobility clause when changes are required and to seek alternatives to redundancy.

Complainant’s arguments

The Complainant was a loyal and valued employee for 27 years. In that time, she worked in the same location throughout. Since at least 2010, the Complainant had worked the same hours. These were hugely important to her as they gave her the opportunity to collect her Grandson from school every day.

It is clear that the Respondent formed the view that the offer of an alternative position was a reasonable one. However, it was not. The letter given to the Complainant in respect of the alternative position set out a reduced rate of pay. There is no way of verifying the source or timing of the hand-written alteration to that letter.

The Complainant made clear to her employer just how important her working hours were to her and why this was the case. The Respondent did not treat this with the seriousness it deserved.

The Complainant’s resignation letter did not amount to a resignation. It was a dismissal. The letter was dictated to her by the Respondent when she was told that she either took the alternative job or she resigned.

S 15(2) of the Acts requires that redundancy be paid when an employee’s job ceases unless,inter alia,an offer of suitable employment is made and the employee has ‘unreasonably refused the offer’. In this case, the offer was not suitable and refusal was reasonable. InCinders Ltd. V. Celina Byrnequoted by the Respondent, in fact the Court referred to a decision of the English EAT inCambridge and District Co-Operative Society v. Ruse (1993) IRLR 156in which it was found that ‘suitability’ of 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 theCinders’case the subjective perspective of the worker in being asked to move from a stand-alone shop to a concessionary outlet within a department store was taken into account in assessing reasonableness. In this case, moving from a single unit manufacturing environment to a large shopping centre was of similar, if not greater, magnitude and, in the circumstances, the Complainant’s refusal was not unreasonable.

The Law

• s. 15 of the Acts reads as follows;

  • Disentitlement to redundancy payment for refusal to accept alternative employment. 15.—(1) An employee who has received the notice required by section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal—

  (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 his dismissal,

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

  (d) he has unreasonably refused the offer.

  (2) An employee who has received the notice required by section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal—

  (a) his employer has made to him in writing an offer to renew the 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 differ wholly or in part from the corresponding provisions of his contract in force immediately before his dismissal,

  (c) the offer constitutes an offer of suitable employment in relation to the employee,

  (d) the renewal or re-engagement would take effect not later than four weeks after the date of dismissal, and

  (e) he has unreasonably refused the offer.

  (3) Where a person who is entitled to a weekly payment has been offered suitable employment by the Employment Service and has unreasonably refused that offer, that person shall be disqualified from receiving a weekly payment for a period not exceeding six weeks

As set out above, the Acts allow this matter to be determined by the Court, notwithstanding the sad demise of the Complainant.

There is no dispute between the parties that the Respondent offered the Complainant an alternative job in the same town, Swords. The issues between the parties concern the provisions of s.15(2), see above, regarding the suitability of the offer and the reasonableness of the refusal.

The importance of its right to exercise a mobility clause was emphasised by the Respondent. Unfortunately, the Respondent was not in a position to provide the Court with the Complainant’s contract. Therefore, the Court has no means of establishing whether her contract contained such a clause and, if so, what were its terms. This is an unfortunate gap in the information available to the Court as it could assist in an assessment as to whether the refusal to accept the offer of an alternative position was reasonable or not.

s.15(2) (b) of the Act, see above, sets out that any offer must be in writing. The only formal offer in writing given to the Complainant sets out a reduced rate of pay. The Respondent states that this was rectified verbally to the Complainant and that it was explained to her that this was an error. With the sad demise of the Complainant, the Court was not in a position to ask her to confirm this.

On the evidence available, therefore, it is not possible to confirm any contractual mobility liability of the Complainant and it is not possible to learn if she would have accepted the Respondent’s strong and, on the face of it, credible assertion that she had been advised verbally that she would retain her pay entitlements.

Both factors have to be weighed in a consideration of the reasonableness of her refusal of an alternative offer of work.

A further factor concerns the suitability of the work offered. It was argued on behalf of the Complainant that there was a considerable difference between the nature of the work environment in a multi- unit shopping centre and a single unit pharmaceutical company premises in which the Complainant had worked for 27 years. The observations of this Court in the ‘Cinders’ case regarding the need to consider the employee’s perspective in testing reasonableness of a refusal of alternative work when there is a change of work environment of significant magnitude were cited as a justification of the Complainant’s refusal in the instant case. It is worth observing that this Court, ultimately, in that case found that the refusal of alternative work was unreasonable when an offer was made that involved a far less substantial change in environment and the case was also cited on behalf of the Respondent in support of the assertion that only work-related factors should be considered in assessing reasonableness of a refusal of alternative work, as the employer cannot be responsible for non-work-related matters.

The Court understands the point made on behalf of the Complainant about the significant change in work environment. There is, however, a danger for the Court in making a ruling that is based solely, or even substantially, on such a consideration, as circumstances differ from case to case. The best that can be said is that this may be a factor for consideration depending on the nature of the change in environment. Of itself, in the instant case, it is arguable if it could over-ride the weight that should be attached by the Court to the considerable positive attempts by the Respondent to find alternative work for the Complainant in the same town and with minimum disruption for her.

The fact that the alternative offer to the Complainant would have been so disruptive to her in forcing her to change her arrangements for collecting her Grandchild was, undoubtedly, the most significant factor in the Complainant’s refusal of the offered alternative. The Respondent argued that the difference of one hour in working arrangements was a minimal change that could have been accommodated by the Complainant with relative ease.

Clearly, it is significant that the Complainant had enjoyed free car parking in her redundant post as she travelled from her home in the Naul to Swords each day to work and from there to Balbriggan immediately after work to collect her grandson. However, it appears that there was no engagement at all on this issue, most probably because of the difficulties perceived by the Complainant with the offer made, although the Respondent did advise the Court that they would have endeavoured to resolve this issue to the Complainant’s satisfaction, had it arisen in discussions. This was not disputed by the Complainant’s representative. It seems to the Court that the facility of free car parking must have had huge importance for the Complainant given her daily schedule.

It is impossible for this Court to give any ruling of general application on the principle of whether or not it is reasonable to refuse alternative work if the alternative involves an adjustment of working time by one hour. For the vast majority of workers it would, clearly, be quite reasonable to expect that they would adjust their non work arrangements by one hour. In the instant case, that was a considerably greater practical and emotional difficulty. It is arguable the extent to which that ought, of itself, to determine the reasonableness of the Complainant’s refusal.

The cumulative effect of the significant change in environment from that in which the Complainant had worked for so long, the fact that the only written offer made to her of an alternative role suggested a decrease in pay, the fact that the hours offered generated child minding issues for her and the absence of any engagement on the important matter of free car parking, all combined to create circumstances that are unique to the instant case and caused the Complainant to decline the offer made.

The question for the Court is whether, in those unique circumstances, the refusal was reasonable and there are counter balancing factors that, in fairness to an employer that tried hard to keep the Complainant in employment, need to be taken into account.

The Court is of the opinion that, in assessing reasonableness, regard has to be had, as per the case law quoted, to the circumstances of the Complainant and her perspective on any offer made.

That is not to say that this is the only matter to be taken into account. If that was so, then all that would be required of an employee to justify a refusal of an offer would be to claim some personal difficulty with it. However, in the instant case, the Court is satisfied, on balance and after considerable deliberation, that there is an accumulation of factors, as set out above, that, when combined, meant that it was not unreasonable for the Complainant to refuse the offer made.

Accordingly, the Court is of the view that the Complainant is entitled to a statutory redundancy payment in respect of her 27 years’ service with the Respondent, based on her remuneration of €434.85 per week.

Determination

The decision of the Adjudication Officer is upheld, albeit on a different basis.

Signed on behalf of the Labour Court



Tom Geraghty
LS______________________
27 May 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.