FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : MR GARRETT BROWNE (REPRESENTED BY RORY TREANOR B.L.) - AND - MS ISABELLA DI SIMO DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Treacy |
1. An appeal of an Adjudication Officer's Decision No(s)ADJ-00020193 CA-00026745-004
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 10 September 2019. The following is the Determination of the Court
DETERMINATION:
This is an appeal by Ms Isabella Di Simo against a Decision of an Adjudication Officer, ADJ-00020193 CA-00026745-004 dated 13th June 2019, under the Redundancy Payments Act 1967 (‘the Act’) against her former employer, Mr Garrett Browne t/a Garrett Stevens Hair Studio. The Adjudication Officer held that the claim was not well-founded. The Complainant’s Notice of Appeal was received by the Court on 18th July 2019. The Court heard the appeal on 10th September 2019.
For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Isabella Di Simo will be referred to as “the Complainant” and Mr Garrett Browne t/a Garrett Stevens Hair Studio will be referred to as “the Respondent”.
Background
The Respondent operated a hair salon business in Harold’s Cross. The Complainant commenced employment as a Hair Stylist with the Respondent on 16th June 2003 and her employment terminated in November 2018. She worked three days (23 hours) per week on Wednesdays, Fridays and Saturdays and was paid €240.00 per week plus 10% commission, which she estimated yielded a total of €346.80 per week.
Summary of the Complainant’s Case
The Complainant was unrepresented at the appeal hearing before the Court. She alleged that she was entitled to a statutory redundancy payment. She said that the Respondent had informed her in 2017 that he was considering moving to a shopping centre on Sundrive Road, Crumlin, however, that did not materialise. She said that this would have been a larger operation and therefore in her view it would have been a legitimate move to a new nearby location and would have been an acceptable move to her. The Harold’s Cross shop was put up for sale in December 2017 and the sale was agreed in September 2018.
The Complainant stated that the Respondent informed her on 31st October 2018 that his brother was selling the premises in Harold’s Cross where the Hair Salon was located and he was therefore taking up a position with another Hair Salon in Nutgrove Shopping Centre. He said that he had agreed with the owner of that salon (Salon X) that he could bring his own staff with him. He offered her a position in Nutgrove Shopping Centre. She said that she would think about it. On 1st November 2018 she informed the Respondent that she had decided not to take up his offer of employment. Later, on 13th November 2018, the Respondent informed her that he was not closing his business and was actually moving his salon business to be combined with Salon X in Nutgrove Shopping Centre. He offered her a position in his new salon. On 16th November 2018 she advised the Respondent that she would not be taking up this offer and requested a redundancy payment instead. The Complainant said that the Respondent told her that he was continuing his business but within the business of another salon. She told him that the offer was not suitable alternative employment as it would neither suit her nor her Client base as it was based upstairs over another hair salon without an identified name plate. She said that the location was not the issue. The Complainant said that she advised the Respondent that she would find her own job elsewhere and sought a redundancy payment instead.
Before the Court, the Complainant alleged that the Respondent’s suggestion of operating a salon within a salon was a sham move by the Respondent to avoid redundancy. She contended that the notion that the Respondent’s salon would operate as a separate entity within Salon X was sharp practice to circumvent the Act after he closed his business in Harold’s Cross.
The Complainant stated that a junior stylist, who agreed to move to the Respondent’s new business in Nutgrove Shopping Centre, was advised that she would have to be employed directly by Salon X.
Summary of the Respondent’s Position
Mr Rory Treanor, B.L., instructed by Peninsula Business Services (Ireland) Limited, on behalf of the Respondent, disputed the Complainant’s claim that she was entitled to a statutory redundancy payment and instead alleged that she resigned her position on or around 26th November 2018.
Mr Treanor said that the Respondent had contemplated moving his hair salon since 2017 and that the Complainant and all other staff were aware of that fact. Initially the Respondent was interested in a property in Crumlin, however that fell through. He said that the “For Sale” sign had been displayed on the premises since December 2017. The sale was agreed in September 2018 and the Complainant and all other staff were aware of this and that he was specifically looking for a unit within a shopping centre. On 30th October 2018, the Respondent agreed with the owner of a split-level salon unit in Nutgrove Shopping Centre to occupy the upper level of the unit.
Mr Treanor said that the Respondent went to the Complainant’s home on 31st October 2018 to discuss the plans with her and offered her a position, either to work with him in the new business or to work directly for Salon X. She said she needed time to think about it and he asked her to respond by 15th November. Eventually on 16th November, she informed him that she would not go to Nutgrove Shopping Centre and asked for a redundancy payment instead. He received a letter from her Solicitor the following day confirming that the Complainant was not interested in moving to Nutgrove Shopping Centre and therefore sought a redundancy payment. The letter raised the point that there was no mobility clause in the Complainant’s contract of employment, and, therefore, to transfer her was grossly unfair to their client. The Respondent responded to the letter on 21st November 2018,inter alia, confirming the following:-
- “Your position still exists in the company and which is still the same company Garrett Stevens….. and we still consider you an employee in the company….. note that your terms and conditions are the same as before.”
Mr Treanor stated that while the new unit was 4.9km from the original workplace, the Complainant’s journey to the original unit was 18.9km and took about thirty minutes, whereas the journey to the new unit is 18.7km and would also take about thirty minutes. Accordingly, Mr Treanor argued that the offer to continue in employment in the new unit which was equidistant from the Complainant’s home, with an existing client base and increased footfall was an offer of suitable alternative employment and therefore no redundancy situation arose. He submitted that she had unreasonably refused that offer.
The Law Applicable
Section 15 of the Act provides that an employee may be disentitled to a redundancy payment for refusal to accept alternative employment:-
Section 15
- (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.
- (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 the termination of his contract,
(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 the termination of his contract, and
(e) he has unreasonably refused the offer.
(2B) n/a
(b) n/a
(3) n/a
- (a) his employer has offered to renew that employee's contract of employment or to re-engage him under a new contract of employment,
In determining the within appeal, the Court is required to consider firstly the suitability of the offer of alternative employment made by the Respondent in writing on 21stNovember 2018 to the Complainant and, secondly, whether or not the Complainant’s decision to refuse that offer was reasonable in all the circumstances. InCambridge & District Co-operative Society Ltd v Ruse[1993] I.R.L.R. 156 the English EAT, when considering the similarly worded provisions of the British legislation, said 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”.
Furthermore, the Court has considered the Complainant’s arguments from her subjective perspective. It is not in dispute that the Respondent offered to retain her in employment on the same terms and conditions of employment as she had had for the previous fifteen years. The Court is of the view that the change involved in moving from working at the hair salon in Harold’s Cross to working in Nutgrove Shopping Centre, a distance of almost 5km, and, more importantly, equidistant from the Complainant’s home, was a reasonable offer of alternative employment. The Court is not satisfied that any evidence has been submitted to substantiate the Complainant’s contention that the transfer of the Respondent’s business was a “sham” or “sharp practice” by the Respondent to avoid paying the Complainant a redundancy payment when his business ceased in Harold’s Cross. When considered in terms of her refusal to accept such alternative employment the Court is of the view that such a refusal cannot be regarded as satisfying the test of reasonableness contained in Section 15 of the Act.
While the Complainant was naturally concerned about the potential loss of her Clients, as her earnings were dependent on the amount of business she conducted, at no point did she endeavour to test out that concern. In accordance with Section 15 of the Act, there was a facility for her to carry out her work in the new premises on a trial basis while retaining her right to a possible redundancy payment. As she did not avail of the offer made to continue in employment with the Respondent, even on a trial basis, the Court is of the view that there are no grounds to substantiate her concerns. In any event the Respondent informed the Court that the business retained 90% of his personal Clients following the move to Nutgrove Shopping Centre.
Determination
In all the circumstances, therefore, the Court is satisfied that the offer made by the Respondent to continue the Complainant’s employment on the same terms and conditions of employment amounted to suitable alternative employment within the meaning of Section 15 of the Act. Furthermore, the Court finds that the Complainant’s refusal to accept the option of working in the Respondent’s Nutgrove Shopping Centre Salon was unreasonable.
Accordingly, the appeal fails and the Decision of the Adjudication Officer is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
DC______________________
23 September 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.