FULL RECOMMENDATION
PARTIES : CCL LABEL LTD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer's Decision No.ADJ-00023888 CA-00030613-003 An Adjudication Officer, Conor Stokes, decided that the claim under the Act was not well founded. The Complainant appealed this Decision to this Court. COMPLAINANT'S ARGUMENTS: In November 2018, the Complainant was told by the Financial Director and the Production Manager that his role was redundant and that they wanted the Complainant to become self employed and drive his own van. The Complainant declined this request. As an alternative, it was suggested that the Complainant could drive a large truck for the Respondent, who did some preliminary work in evaluating and costing a 7.5 tonne truck. The Respondent could not confirm the wage for this position. The Respondent confirmed an unwillingness to make a statutory redundancy payment. At a second meeting that month, an offer was made to the Complainant to give up driving and to take on work packing, slitting, (a multi-blade machine), and working in the warehouse. The Complainant declined due to physical issues with his back and neck. The salary offered was below his then remuneration. In December 2018, the Complainant’s union rep. was told that the option for the Complainant to remain in his existing employment was not available. In particular, the Respondent favoured the option of the Complainant driving the heavy truck. In fact, for the Complainant to drive such a truck, he would require a Driver Certificate of Professional Competence, (CPC), which he has never held and which requires up-dating of 35 hours’ training over 5 years. When the Respondent advanced its intention to get the Complainant to drive a truck, the Complainant resigned. The roles offered to him were, in no way, suitable and would have been dangerous to the Complainant. The Complainant believes that the Respondent wished to make him redundant but was not prepared to pay his statutory redundancy entitlement. He was forced to resign due to unreasonable behaviour by the Respondent. He was informed that his position was redundant but was not offered any suitable alternative employment. The Complainant’s constructive dismissal arose because the Respondent had ceased, or given the expectation that it would cease, to require the Complainant to carry out work of a particular kind, namely van driving or that such work had diminished or was expected to diminish. This meets the requirements of s.7 (2) (b) of the Act. In the case of A Merchandiser v. A Marketing Company , ADJ-00018490, the Workplace Relations Commission made clear that an employee resigning when the employer has indicated that the employee’s role is redundant, and where alternatives were not suitable, is taken to be dismissed by reason of redundancy. Similarly in A Cleaner v A Food Distributor, ADJ-00019728, an offer of alternative employment that changed working hours was not considered to be an offer of suitable employment. An offer of what be seen as up-graded employment, where the employee lacked the requisite skills, entitled the employee to resign and to be entitled to a statutory redundancy entitlement. Each of the offers made to the Complainant were offers of unsuitable employment. The offer of self employment is not an offer of suitable employment. In respect of the other offers, a man of 60 years of age cannot be expected to perform such physical roles, in circumstances where he had recently undergone neck and back surgery nor could he be expected to drive a 7.5 tonne truck when he had never driven one, apart from driving lessons, and where he did not have the necessary CPC. This was also in circumstances where his remuneration was not set out, except regarding the operation of the ‘slitting’ machine, which would involve a drop in remuneration. The conduct of the Respondent entitled the Complainant to resign under s.9(1) of the Act. He was told his role was redundant, not issued with the required redundancy notice and offered unsuitable alternatives. The response that if the Respondent was to be given a redundancy payment, ‘everybody would want one’ is an unacceptable position for the Respondent to take. The Complainant cannot be disadvantaged by the Respondent’s failure to issue the appropriate redundancy documentation. The Complainant is entitled to be paid his statutory redundancy amount of €39068.11. The AO erred in finding that the Complainant was offered a suitable alternative role of driving a truck. The fact that he had a driving licence for the vehicle is irrelevant. He had not driven such a vehicle since driving lessons 30 years previously and he is not, in fact, qualified to drive the vehicle. It is for the Respondent to offer suitable alternative employment, if it feels that is appropriate. The Respondent treated this as a redundancy situation but it did not tackle the matter as a redundancy. It did not suggest that the offers made were ‘suitable alternative’ employment. Instead, they told the Complainant that they were his only options. The Complainant explored the options but, for the reasons outlined, they were not suitable. The Respondent seeks to rely on a ‘flexibility’ clause in the Complainant’s contract. The Complainant did not receive a contract until 2016, at which time he was assured that the contract would not change his conditions. The Complainant’s contract contained a flexibility clause to allow for him to undertake duties other than van driving. When the Complainant was employed in 1983, he held a full driving licence, (A,B,C and D) and owned a three tonne flat-back truck. On this basis, around 1987, he moved to working in Deliveries, using his own van. He continued to be paid as an operative and was paid mileage for the use of his van, (in 2018 this totalled €8681). In 2017, it became clear that the Complainant was under- utilised. The number of small deliveries to Dublin based clients had dwindled. In late 2018, the Respondent commenced a process of consultation with him. A number of options were discussed, including the Complainant becoming self-employed and tendering for the business. He indicated that he was not interested in this option. A further option of taking on larger deliveries to two major clients was discussed. The Respondent indicated a willingness to invest in a flat-bed truck to facilitate this. The Complainant raised the question of redundancy. This was not raised by the Respondent, who continued to need somebody to carry out deliveries and because there were vacancies in operations which, in light of his previous experience, the Complainant could fulfil. The options were explored again at a further meeting. In particular, the option of a truck being purchased was explored. The Respondent noted that it would pay the going rate. The Complainant said that he was not interested and again raised the question of redundancy. He was advised that this did not arise as, ultimately, the Respondent would have to hire a replacement driver. At a subsequent meeting, the Complainant’s union representative raised the question of redundancy and the Respondent confirmed that this was not possible. This was confirmed again at a meeting with the union representatives in January 2019, at which the Respondent reiterated the three options. Contrary to what is claimed, the option of driving the truck would have increased the Complainant’s remuneration and he would have been relieved of the maintenance costs for his van. At a meeting the next day, the Complainant stated that he did not wish to become self-employed or to run a machine but that he was happy to continue to help out in Stores when he was not delivering. The Respondent agreed to allow this to continue while they explored the purchase of a truck. A truck had been selected and customers had been consulted when the Complainant tendered his resignation orally on 13 March 2019, giving one week’s notice. It is understood from his complaint form that the Complainant took up employment from 25 March 2019. The belief of the Complainant that the Respondent wished to make him redundant is ill conceived. The Complainant was not dismissed by the Respondent either by redundancy or otherwise. His circumstances do not meet the requirement of s. 7(2) of the Act, With regard to the Complainant’s submission that his resignation constitutes dismissal under s.9(1)(c) of the Act, this subsection is construed narrowly and is narrower than the definition of constructive dismissal, providing that the employee is entitled to terminate his employment by reason of the employer’s conduct. Other duties were discussed with the Complainant, the status quo remained for the time being, while the Respondent explored the option of purchasing a truck. Each of the alternatives put to the Complainant were suitable for him. In particular, he was employed as a driver and one of the alternatives put to him was to continue as a driver. It is not true to say, as asserted, that the Complainant would have an unguaranteed level of income if he had become self employed. The Respondent agreed that, if this option was taken, the Complainant would continue in deliveries and could tender for all Dublin deliveries in a new truck. The claim that the ‘slitting’ machine is dangerous is unfounded and this option would not have resulted in a loss of remuneration. The assertion that the vehicle being proposed for the Complainant was so materially different from that being used by the Complainant as to render this alternative unsuitable is simply incorrect. The vehicle being driven by the Complainant was 2.8 tonnes,5 metres long and 2.3 metres wide; that proposed was 7.5 tonnes,7.81 metres long and 2.04 metres wide. The Complainant was licenced to drive this vehicle, could do so without meeting further requirements, except to meet CPC requirements over a five year period after he commenced to drive the vehicle. The operation of the new vehicle would have been less physically intensive as loads are mechanically loaded and unloaded to that vehicle. The Complainant’s remuneration would have increased. If any training had been required to secure the CPC, this would have been funded by the Respondent, though it appears the Complainant would have enjoyed acquired rights because his licence was secured prior to 2009. The role working on the machine was also suitable for the Complainant, in light of his previous experience. The Respondent denies that the Complainant was told that redundancy could not be paid as, otherwise, everybody would look for it. The Respondent also denies that it wished to make the Complainant redundant, while avoiding the payment of redundancy. The Complainant’s role was not redundant. With regard to the two cases referred to by the Complainant, in the case of A Merchandiser v. A Marketing Company, the AO found that no reasonable offer of alternative employment was made to the complainant, while in the case of A Cleaner v.A Food Distributor, the AO found that the offer of alternative employment was not suitable. Both cases are distinguishable from the present case. As the AO noted in the present case, a number of alternative roles were offered and the Complainant possesses the skills to undertake the role of a driver of the vehicle suggested by the Respondent. He found also that the alternative of working on the machine was also suitable. As the AO noted, while the need for a small van driver had diminished, the need for a driver had not, so there was not a redundancy situation. The applicable law Redundancy Payments Act 1967
Dismissal by employer. 9.—(1) 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 the employer is terminated by the employer, whether by or without notice, or (b) where under the contract under which he is employed by the employer he is employed for a fixed term, that term expires without being renewed under the same or a similar contract, or (c) the employee terminates the contract under which he is employed by the employer without notice in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer's conduct. (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, or (b) in any other case, the renewal or re-engagement is in pursuance of an offer in writing made by his employer before the ending of his employment under the previous contract, and takes effect either immediately on the ending of that employment or after an interval of not more than four weeks thereafter (3) (a) An employee shall not be taken for the purposes of this Part as having been dismissed by his employer if— (i) he is re-engaged by another employer (hereinafter referred to as the new employer) immediately on the termination of his previous employment, (ii) the re-engagement takes place with the agreement of the employee, the previous employer and the new employer, (iii) before the commencement of the period of employment with the new employer the employee receives a statement in writing on behalf of the previous employer and the new employer which— (A) sets out the terms and conditions of the employee's contract of employment with the new employer, (B) specifies that the employee's period of service with the previous employer will, for the purposes of this Act, be regarded by the new employer as service with the new employer, (C) contains particulars of the service mentioned in clause (B), and (D) the employee notifies in writing the new employer that the employee accepts the statement required by this subparagraph.
(4) For the purposes of the application of subsection (2) to a contract under which the employment ends on a Friday, Saturday or Sunday—(a) the renewal or re-engagement shall be treated as taking effect immediately on the ending of the employment under the previous contract if it takes effect on or before the next Monday after that Friday, Saturday or Sunday, and (b) the interval of four weeks mentioned in subsection (2) (b) shall be calculated as if the employment had ended on that Monday. (5) When an employee terminates his contract of employment without notice, being entitled to do so by reason of a lock-out by his employer, subsection (1) (c) shall not apply to that termination. (6) Where by virtue of subsection (2) an employee is treated as not having been dismissed by reason of a renewal or re-engagement taking effect after an interval, then, in determining for the purposes of section 7 (1) whether he has been continuously employed for the requisite period, the period of that interval shall count as a period of employment. (7) In determining for the purposes of this Act whether at a particular time before the commencement of this Act an employee was dismissed by his employer, the appropriate provisions of this section shall apply as if the matter to be decided occurred after such commencement.
It follows, therefore, that the first issue to be considered is whether the circumstances are such that the provisions of the Act are applicable. The Complainant’s case is based on the fact that his role had ceased or diminished. The Respondent’s case is that, while the need for the particular form of delivery had diminished, deliveries were still required and the need for a driver, in which role the Complainant was employed, had not diminished. The question of whether the alternatives offered to the Complainant and, in particular, the offer of continued delivery work while delivering by truck, constitute ‘suitable’ alternative’ employment arises only if the Court accepts that the Complainant’s role was redundant. Even if it was, the Respondent indicated to the Court that it would have been willing to pay any training costs, if any, and to facilitate the acquisition of the certificate. It is not clear if this was spelled out to the Complainant. If not, it might explain, in part, his apprehension in accepting this work. While, for a variety of reasons, the change of vehicle might not be suitable for him, in his view, it is difficult to see how the Court could uphold a claim that a redundancy had occurred, in those circumstances. It is a normal feature of most employments that technology changes. The fact that an employee operates a certain type of equipment that the employer deems no longer to meet its requirements and then seeks to get employees to operate different types of equipment does not, of itself, mean that the role concerned is rendered redundant. There may be cases where the scale of change is so great that it can be argued to be a different job entirely but this is not, in the view of the Court, such a case.
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