FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : COSY TOTS & CO LTD T/A TOTS & CO (REPRESENTED BY PENINSULA BUSINESS SERVICES) - AND - MS NORA BOGGANS (REPRESENTED BY DUBLIN SOUTH CITIZEN INFORMATION SERVICE CIG) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00026082 CA-00033072-001 This is an appeal under the Redundancy Payments Act 1967, ‘the Act’. Ms. Boggans, ‘the Complainant’, was employed by Cosy Tots and Co. Ltd., ‘the Respondent’ as an Assistant Manager on a part-time basis in a premises in Nutgrove, Rathfarnham, Dublin. She commenced this employment as a Childcare Assistant on 25 January 2012. The Respondent acquired the business in 2014 and the Complainant transferred her employment under a transfer of undertakings. On 2 August 2019, the Respondent closed the Nutgrove premises. The Complainant was offered alternative employment in a premises in Barrow St., Dublin. The Complainant declined the offer on grounds that it was not a reasonable alternative in the circumstances. The Complainant sought redundancy. This was refused by the Respondent on grounds that a suitable alternative role had been offered. The Complainant lodged a complaint under the Act with the Workplace Relations Commission, ‘WRC’. The Adjudication Officer, ‘AO’, found that the Complainant was not entitled to a redundancy payment. The Complainant appealed to this Court. Summary of Complainant Arguments The Complainant was advised on 25 June 2019 that her role could be made redundant. She met the owners of the Respondent on a number of occasions subsequent to this and was offered a position in Barrow St. This position was not of Assistant Manager but as a Childcare Assistant. The Complainant raised concerns about the location and the impact on her family life. Although she was advised that her remuneration would be unchanged, the offer made constituted a loss of status for the Complainant. The respective roles are substantially different. The new location would increase the commute from Clondalkin to/from work from 15 minutes to at least an hour each way. There is parking in Nutgrove but there is none available in Barrow St., which would necessitate changing to use public transport. The Complainant worked from 7.30am to 3pm and got home from work in time to collect her eldest son from school at 4pm. This would be impossible to maintain if she moved to Barrow St. Using public transport would generate extra cost. The Complainant’s younger son has ill health and requires regular GP/hospital attendance that would be a further difficulty for the Complainant to arrange with a longer commute. On 16 August 2019, the Complainant set out her concerns in writing to the Respondent. These were not addressed and the Respondent merely reiterated that there was reasonable alternative employment available. With reference to Sections 7(1) and (2) and s.15(2) of the Act, it is clear that the offer made was not an offer of suitable alternative employment. The Court is referred to the cases in which it was noted that an employee’s decision making regarding whether an offer of alternative employment is reasonable or not has to be judged with account being taken of factors that are personal to the worker, see Summeridge Ltd. v. Derek Byrne RPD211; Cambridge and District Co-operative Society Ltd. v. Ruse (1993) I.R.L.R. 156; Executors of Everest v. Cox (1980) ICR415. The offer made to the Complainant was not an offer of suitable alternative employment. The refusal of the offer by the Complainant was not unreasonable. The Complainant is entitled to a redundancy payment. Summary of Respondent Arguments A reasonable offer of alternative employment was made to the Complainant. Although the position of Assistant Manager in Barrow St. was already filled, the rate of remuneration and terms of employment offered were unchanged. The Complainant refused even to consider the offer and indicated that she did not intend to secure new minimum qualifications required to work in the industry as she intended to leave this line of work. Google maps indicates that the distance from the Complainant’s home to Barrow St. is 13 km and it takes 20-45 minutes by car, compared to 12.5km to Nutgrove, taking 16-24 minutes by car. Public transport to Barrow St is estimated at 48 minutes. There was never designated parking available in Nutgrove but the Respondent did facilitate the use of parking, when available. The Complainant never made the Respondent aware of any health problems being experienced by her children. The point of the consultation process was to put forward all options for consideration and the Complainant never suggested working different hours to enable her to meet her family commitments. The Complainant could bring her children to the creche and after school service, if she wished, at a preferential rate. Despite an offer of suitable alternative employment, the Complainant refused to engage regarding any option except redundancy. The offer of employment to the Complainant remains open. With regard to s. 15(2) of the Act, the offer of continued employment at a location almost equidistant from the Complainant’s home on the same terms and conditions is an offer of suitable employment. This was refused unreasonably. The Applicable Law Redundancy Payments Act 1967: General right to redundancy payment. 7.— (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 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, 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, 15. (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. Deliberation The issue for the consideration of the Court is whether the Complainant’s decision to decline the offer of alternative employment was an unreasonable refusal. The Complainant argued that, on two grounds, her refusal of the offer was reasonable. Firstly, she argued that the offer of a post as a Childcare Assistant amounted to a loss of status as she was an Assistant Manager. Secondly, she argued that the additional commute time placed demands on her that would interfere with her family life. The Respondent does not dispute that the post on offer to the Complainant was that of Childcare Assistant and not that of her existing grade. It was argued that, in maintaining the same terms and conditions for the Complainant, the Respondent had provided suitable alternative employment and that the Complainant’s refusal to accept the offer is unreasonable, as provided for in s. 15(2) of the Act, see above. The Court does not accept this argument by the Respondent. A diminution in status and a reversion to the duties of a Childcare Assistant is, in the view of the Court, a reasonable basis for the Complainant to conclude that the offer is not one of suitable alternative employment. It follows, therefore, that the Court is satisfied that there was a redundancy and that a payment in respect of same is payable. In having regard to what is ‘reasonable’, the Court has to consider what a reasonable person might decide when made such an offer. This does not mean that all reasonable people would have refused the offer. Some reasonable people might have accepted it but others may not. The point is that a reasonable person is entitled to refuse an offer that involves such a clear down grading of status and responsibilities. It is not necessary for the Court to consider the issue of the commute time. A redundancy payment based on the Complainant’s service with the Respondent is payable. Determination The Decision of the Adjudication Officer is over-turned.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
