Complainant

Respondent

Anonymised Parties

Laundry Operative

Nursing Home Operator

Representatives

Self

Ronan Brennan, Brennan & Co. Solicitors

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-00022467-001

07/10/2018

The complainant commenced employment in the nursing home operated by the respondent in March 2001.   The complainant was employed initially as a care assistant and from 2008 the complainant worked in the home’s laundry. In 2017 a decision was made by the respondent to shut down the laundry operation and following discussions the complainant transferred to the day care section of the home. In early 2018 the respondent sought to transfer the complainant to another section of the home. During discussions in this regard it emerged that the complainant had a medical condition and the respondent considered her unfit to continue working. The complainant alleges that the positions offered to her by the respondent are unsuitable because of her health issue and that she has been refused redundancy.   The complainant is at present on long-term sick leave.

The complainant was employed as an operative in the nursing home’s laundry.

The respondent decided to close the laundry operation and the complainant was offered and accepted an alternative position in the day care section of the home.

After 3 months the respondent informed the complainant that she was again being transferred but the alternative positions offered to the complainant were not suitable because of the complainant’s health issues.

During discussions on the transfer issue the respondent issued the complainant with a letter alleging that she had verbally resigned. The complainant absolutely denied ever resigning.

The complainant has been refused redundancy and is now on long-term sick leave which is unpaid.

The complainant was originally employed as a day-care assistant and subsequently as an operative in the laundry facility of the home.

In 2017 the continued operation of this facility was being examined and consultations were held with the staff concerned over a period of weeks.

The complainant was offered a number of alternative positions and finally chose a position in the day-care section. It was pointed out at that time that the complainant’s contract allowed the respondent to move staff if so decided.

In 2018 a decision was made to transfer the complainant to another section and in discussing this matter with the complainant the respondent was made aware of the complainant’s health issue.

The respondent referred the complainant to an occupational health specialist and the subsequent report stated that the complainant was unfit for work. The complainant was then placed on sick leave which is ongoing.

The complainant commenced employment with the respondent in a nursing home in March 2001. The original position which the complainant held for 7 years was that of Care Assistant. In 2008 the complainant transferred to working in the laundry of the nursing home.

In August 2017 the viability of continuing to operate the laundry function in-house was under review by the respondent’s management. Discussions were held with the employees concerned. The complainant was offered a number of alternative positions within the home. At a meeting in September the complainant, in discussing these options, advised her manager that she had a back problem and was awaiting an appointment with a consultant in this regard. Following further consultation the final decision was made to close the laundry and the complainant was offered a position in the Day Care Centre which she accepted. Following a trial period the Director of the respondent wrote to the complainant expressing satisfaction that she had settled into the position but adding that the complainant’s contract allowed the respondent to move staff to other positions.

In February 2018 the respondent carried out a review of staffing in the home and decided to move a number of staff including the complainant. A meeting was held with the complainant at which she was advised that she was being transferred to a care assistant role in the nursing home. The complainant rejected this decision and according to the Director there was a heated discussion on the matter both on that day and on the following day. The immediate outcome was that the complainant’s manager wrote to the complainant on 14 February 2018 to the effect that she had been advised by the Director that the complainant had decided that the position offered was not acceptable and that the complainant would seek alternative employment and that therefore her verbal resignation was being accepted.  There was a further meeting the following day during which the complainant strongly refuted the suggestion that she had resigned and again stated that she wanted to retain her position in the Day Care Centre.   Another meeting was held on 23 February with no agreement being reached. On 26 February the complainant wrote to the Director setting out in detail her view of events and the reasons why she was refusing to transfer. The letter ended as follows:

“I confirm that I cannot take this responsibility because my health condition will not allow me to do job properly and will put my health and patients in dangerous situation.”

The complainant furnished some documents in support of her health situation. One was a letter from her GP, which appeared to be dated October 2017, to the effect that the complainant suffered from chronic lower back pain and that it would be unwise of her to engage in any work that included heavy lifting. The other was confirmation that the complainant had been referred to a hospital for an appointment with a Neurologist which was also dated 2017.   The Director stated in evidence that this was the first formal notification that the respondent received with regard to the complainant’s health issues.

On 9 March 2018 the D.O.N. (Director of Nursing) wrote to the complainant setting out the respondent’s view that transfer to the new position was required and also advising the complainant that an appointment had been made to have her medically assessed at an Occupational Health clinic. The letter ended by informing the complainant that she was consequently being placed on Health and Safety Leave (on full pay) for a period of 3 weeks with effect from 12 March 2018. The report of the resulting examination stated that the complainant was unfit for work that required any lifting, twisting or bending until after a full evaluation by her consultant Neurologist. The Director wrote to the complainant attaching a copy of the report and requesting that the complainant take sick leave and supply sick certs and advise the Director of the outcome of the appointment with the Neurologist. The complainant then commenced sick leave which is unpaid. The outcome of the medical appointment appears to be that the complainant is required to undergo further tests, treatments and physiotherapy.   The complainant remains on sick leave.

The complainant lodged a formal grievance in relation to a number of matters by letter dated 11June 2018. A hearing of the grievances took place on 26 July and the outcome was communicated to the complainant by letter from the manager dated 7 August. The complainant was advised that she could have her grievances reviewed by an independent third party. A further reply to these grievances was then sent to the complainant from the Director on 10 August noting that this was done to provide clarity from the Director’s point of view. The complainant wrote appealing the outcome on 3 September.   The appeal was considered by the Director who responded on 17 September rejecting most of the grounds of appeal. The complainant then lodged her complaint with the WRC where it was received on 7 October 2018.

The complaint before me is a complaint under the Redundancy Payments Acts, 1967 – 2014, and I can only consider that complaint within the provisions of that legislation.   The complainant’s position is that her employer closed the laundry and her position of laundry operative does not exist anymore. The complainant agreed an alternative position of assistant in the Day Care centre but some months later she was replaced in that role by another employee. No suitable alternative positions were then offered to the complainant which had regard to her health issues. The respondent refused to consider redundancy.

Section 7 of the Act states:

(1)    An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided –

(a)    he has been employed for the requisite period, and

(b)    he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2)    For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –

(a)    the fact that the employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)    the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c)     the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

Section 9(1) of the Act states:

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)    the contract under which he is employed by his employer is terminated by his employer, whether by or without notice, or

(b)    n/a, 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.

Under the legislation, in order to qualify for a redundancy payment the employee in question must have been either dismissed, or laid off / kept on short-time for a period specified under the legislation. The complainant does not fall into any of these categories.   The complainant at the time of the complaint, and indeed at the time of the hearing, is on long-term sick leave.   There has been no termination of her employment and she has not been laid-off or placed on short-time working.   The respondent has stated that the complainant’s position still exists and what is required is medical certification to the effect that she is fit to resume her duties. In these circumstances I have to find that the complainant has not been made redundant and therefore is not entitled to a redundancy lump sum.

Complaint No. CA-00022467-001:

For the reasons outlined above I find this complaint under the Redundancy Payments Acts, 1967 – 2012, to be not well founded and it accordingly fails.