Complainant

Respondent

Anonymised Parties

A Cleaner

A Facilities Management Company

Representatives

  N/A

N/A

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-00035651-001

09/04/2020

The complainant commenced employment as a cleaner on 27th May 2012. She worked 8 hours per week and received a gross weekly salary of €72.90. She asserts that she is entitled to a redundancy payment because the respondent was unable to find a suitable alternative role for her following the termination of the cleaning contract on which she was previously engaged.

The complainant commenced employment as a cleaner on 27th May 2012. From the beginning of her employment, she was engaged by the respondent to carry out her cleaning duties in a medical practice but a decision was subsequently made to bring the function in house and the respondent’s contract therefore ceased. Further to this, the respondent found alternative work for the complainant at a different location between 7-8kms from where she had previously been based. The complainant however refused to accept this alternative role given that there was no direct bus route to the new premises. She also stated that she did not know how far the bus stop was from the proposed new work location. Given that the new proposed role was not suitable for her, the complainant believed that she was entitled to a redundancy payment.

The respondent’s witness agreed that the complainant had been engaged in cleaning duties at the medical practice and acknowledged that the contract was lost because a decision made to bring the function in house. He stated that he informed all four cleaning staff who were engaged at the premises in early December that the contract at the medical practice would be terminating but that he would find alternative work for them on other contracts at different locations. He subsequently found work for the complainant’s three colleagues and also found a position for the complainant at a premises which was 7-8kms from where she had been previously based. He believed that it was entirely reasonable to offer her this position.

I note that in accordance with Section 11 (1) of the Acts the complainant was temporarily laid off on January 14th 2020 and that this was formally notified to her in writing on 13th January 2020. Subsequently, on 23rd January 2020, she was offered an alternative role at a premises which was 7-8kms from where she was previously engaged and which she refused to take up because there was no direct bus journey from her home and she would have to walk from the bus stop to the new premises.

I am therefore required to firstly consider the suitability of the offer of alternative employment made by the Respondent to the Complainant and, secondly, whether or not the Complainant’s decision to refuse that offer was reasonable in all the circumstances prior to deciding whether or now she is entitled to a redundancy payment.

In Cambridge & District Co-operative Society Ltd v Ruse[1993] I.R.L.R. 156 the English EAT, 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”.

I note firstly that the respondent lost the cleaning contract at the medical practice and that he found alternative cleaning roles on other contracts for all four of his employees who were engaged at the medical practice and further note that three of these employees accepted their new roles. I am satisfied therefore that the Respondent acted in a bona fide manner in seeking to retain the Complainant by offering her a role in a new location. To that extent, I find that, from an objective perspective, the Respondent satisfies the first leg of the test referred in Cambridge above.

Furthermore, I have 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 for the previous eight years. While I recognise that the alternative role was located a distance of 7-8kms from her previous workplace and would have involved a bus journey for the complainant, unlike heretofore, I was struck by her assertion that she was unaware how far she would have to walk from the bus stop to her new work location. I am therefore of the view that she did not given any reasonable consideration to taking up the new role.  

As well as failing to assess how far she would have to walk from the bus stop to her proposed new work location, I note that she did not avail of the offer made to continue in employment with the Respondent, even on a trial basis.

I also have regard to the EAT decision in the case of Employer -v- Employee UD1968/2011, RP2542/2011 where the employee in that matter refused to move an additional five miles (8kms) down the N7. The Tribunal held that the change in location did not amount to a fundamental change and that the refusal to move was wholly unreasonable.

The Tribunal went on to say, "it is a well-established legal and factual principle that from time to time employees might be expected to change workplace location during the course of employment and that this fact cannot and does not give rise to redundancy where employees can reasonably be expected to get to their new destination."

In all the circumstances, therefore, I am 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. Furthermore, I find that the Complainant’s refusal to accept the alternative role was unreasonable.

The appeal is not allowed and the complainant is not entitled to a redundancy payment.

Change of location;