RPD205

1.An appeal of an Adjudication Officer's Decision No ADJ-000267761.

BACKGROUND:

2.The Respondent appealed the Decision of the Adjudication Officer to the Labour Court on 15 June 2020 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 2 October 2020. The following is the Determination of the Court:


DETERMINATION:

The Complainant was employed as an office administrator in the Respondent company from 1 January 2005 to 24 January 2020 in the Respondent’s warehouse in Grand Canal Quay, Dublin. She lives in Wicklow and travelled to work by train. The Respondent moved the business to Clonshaugh. The Complainant could no longer commute to work by train. She requested redundancy and this was refused by the Respondent. There is disagreement between the parties as to whether the Respondent offered on an on-going basis to collect the Complainant at the train station and drive her to Clonshaugh within her normal working hours.

The Complainant brought a case to the Workplace Relations Commission under the Redundancy Payments Acts 1967-2015, ‘the Acts’. The Adjudication Officer found in favour of her claim for a redundancy payment in accordance with the Acts. The Respondent appealed that decision to this Court.

Summary of Respondent arguments

The claim is inconsistent with s.39 of the Acts, (reference presumed to be to s.9.(2) (a and b),see below).

The new location of the business is within 10km of the previous location.

The Respondent was willing to collect the Complainant at the train station at her usual starting time with a return journey every working day to leave her back there at her usual time.

The Complainant seemed happy with this but then, at the end of the first week, she announced that she was leaving. It soon emerged that the Complainant had secured alternative employment.

There was a reasonable alternative provided to termination.

Among other cases cited, in the case of Allied Irish Banks v. Lupton (1984), it was established that where the power to re-locate or transfer is exercised reasonably, such actions may be permitted.

Summary of Complainant arguments

The location transfer had potential major implications for the Complainant as there was no direct public transport option, there was a huge increase in commute time, there was extra cost and there were implications for work/life balance.

A claim for redundancy is supported by the terms of Part II, s.7 of the Acts, ( reference presumed to be to s. 7(2) (a and b),see below).

While the Respondent offered an improved remuneration package to encourage the Complainant to transfer, this was not adequate to address the Complainant’s concerns.

The offer to arrange transport to Clonshaugh was only for a temporary period and the Complainant moved for one week to Clonshaugh to assist with setting up the new office.

Reference to on-going transport to Clonshaugh by the Respondent was made after the Complainant had left the employment.

The Complainant’s contract makes clear that her place of work was Grand Canal Quay.

The applicable law.

Redundancy Payment Acts 1967-2015

7. - (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 his 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,

9. - (2) An employee shall not be taken for the purposes of this Part to be dismissed by his employer if his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment, and—

• ( a) in a case where the provisions of the contract as renewed or of the new contract as to the capacity and place in which he is employed, and as to the other terms and conditions of his employment, do not differ from the corresponding provisions of the previous contract, the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract,

15.— (1) An employee 1 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.

19.—(1) Upon the dismissal by reason of redundancy of an employee who is entitled under this Part to redundancy payment, or upon the termination by such an employee in accordance with section 12 (2) of his contract of employment, his employer shall pay to him an amount which is referred to in this Act as the lump sum.

(2) Schedule 3 shall apply in relation to the lump sum.

(3) The Minister may by order amend Schedule 3.

Schedule 3

1. The amount of the lump sum shall be equivalent to the aggregate of the following—

• (a) the product of one-half of the employee's normal weekly remuneration and the number of years of continuous employment, with the employer in whose employment he was on the date of dismissal, between the date on which the employee attained the age of sixteen years and the date on which he attained the age of forty-one years, and

  (b) the product of the employee's normal weekly remuneration on the date of his dismissal and the number of years of continuous employment, with the employer in whose employment he was on the date of dismissal, after the employee had attained the age of forty-one years.

• 3. (a) For the purpose of ascertaining, for the purposes of paragraph 1, the number of years of continuous employment, the number of weeks in the period of continuous employment shall be ascertained in accordance with this Schedule and the result shall be divided by 52.

Deliberation and Determination

There was no mobility clause in the Complainant’s contract. Her place of work was stated to be Grand Canal Quay.

The references to reasonable offers of suitable alternative employment in the Acts, as set out above, are references to such offers being made in respect of the same place of employment.

The Respondent stated that both Clonshaugh and Grand Canal Quay are in Dublin. It was argued, therefore, that they are ‘separate locations in the same place’. While the ingenuity of the argument is worthy of note, the Court has to apply common sense to its consideration to such matters. By any stretch of the imagination, there is a considerable difference in terms of place for an employee who commuted by train but then found that her employer was re-locating to a place where there are no train links and which is considerably further from her home. In the circumstances of the commuting difficulties in Dublin, this represented a major change to the terms of her contract, which most rational people would regard as a change of such significance that, even if the disputed transportation was to be provided, would affect her ability to continue to work for the employer. It would be totally unreasonable to interpret such a transfer of location as if it could be regarded as an offer of suitable alternative employment in the same place. Therefore, the transfer of location created a redundancy within the meaning of the Acts.

The Complainant’s final wage has been established at €488.90 per week. She is entitled to a redundancy payment based on this wage for the 15 years and 3 weeks, from 1 January 2005 to 24 January 2020, when she was an employee in accordance with Schedule 3 of the Acts , as set out above.

The Decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Tom Geraghty
CR	______________________
16 October, 2020	Deputy Chairman