Complainant

Respondent

Anonymised Parties

An Employee

An Employer

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-00033072-001

13/12/2019

The respondent is a creche and Montessori business providing childcare for children aged up to 5 years old. The respondent operated at three locations (one Southside location, one South City centre location and the third at a Northside location) and this complaint centres around the closure of the premises at southside location. The complainant was originally employed as a Childcare Assistant and was later promoted to Assistant Manager.

The complainant was employed by the respondent and worked a three-day week, including one day of parental leave. Her working hours were from 7.30 am until 3pm.  

The complainant submitted that she was told on 25 June and in two subsequent meetings that the only alternative employment available to her was in the South City Centre location. She submitted that this was not an appropriate alternative as it was further away from her home, that it did not come with parking and that it took longer to get to.

She submitted that as she had two children, one of whom was regularly unwell, it was not possible for her to accept this option. The complainant submitted that she was made redundant and accordingly is entitled to the appropriate payment for such.

The respondent submitted that they acquired the Southside location in 2014 but ultimately was unable to operate profitable at this location. When the lease on the premises expired, the respondent made a commercial and business decision to close that location.

On 25 June 2019, the respondent wrote to the complainant notifying her of the business situation and notifying her that her role could potentially be made redundant. The complainant was invited to a meeting on 3 July with was to form part of the consultation process. This was followed up with a second meeting on 22 July.

The respondent submitted that as part of the consultation process, it offered the complainant a position in its South City Centre location. The respondent submitted that this offer constituted a reasonable offer of alternative employment.

The respondent submitted that the alternative employment was located was almost the same distance from the complainant’s home as the old location (within 1km) and took about 12 minutes longer to get to. It also submitted that the position at the old location did not come with a parking entitlement.

The respondent submitted that the alternative position may entail a title change but would come with the same pay and conditions as the previous position. The respondent submitted that as the complainant did not accept the alternative role offered to her, this did not amount to a redundancy situation.

CA-00033072-001

This complaint centres on whether the offer of alternative was suitable for the complainant and whether she would be entitled to a redundancy payment. Section 15 (2) of the Redundancy Payments Act, 1967 states that:

(2) An employee shall not be entitled to a redundancy payment if —

(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.

The respondent contended that the offer of alternative employment constituted a suitable alternative, the complainant contended that it did not.

The respondent submitted that the alternative employment was located was almost the same distance from the complainant’s home as the old location (within 1km) and took about 12 minutes longer to get to. The complainant submitted that the new location was 4.6km further away and took 20 minutes more to get to.

The complainant submitted that there was no parking at the new location and that she would be required to get a bus. The respondent commented that she was not entitled to a parking space. It also submitted that she would be entitled to the same terms and conditions as the original post.

Having considered the arguments presented to me and weighing up the new proposition as compared to the post at the old location, I find that the alternative position offered to the complainant does constitute an offer of suitable employment.   Accordingly, I find that the complainant was not entitled to a redundancy payment in accordance with the provisions of Section 2 of the Redundancy Payments Act, 1967.

CA-00033072-001

As I have found that the alternative offered to the complainant did constitute an offer of suitable employment, my decision is that the complainant is not entitled to succeed in this complaint and accordingly she is not entitled to a redundancy payment in these circumstances.

Redundancy, suitable alternative employment