Complainant

Respondent

Parties

Egilja  Fersta

Cosy Tots And Co Ltd Tots & Co

Representatives

 Citizen Information Centre

 Peninsula Group Limited

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-00038885-001

24/07/2020

The complainant submits that she was denied her statutory redundancy payments and contrary to section 7 of the Redundancy Payments Acts 1967-2014.

The complainant was employed as a Creche Manager with the respondent from the 22/2/2016 until 2/8/2019 when she was made redundant,

 She was paid €30,000 per annum. She worked 40 hours a week.

She submitted her complaint to the WRC on the 24/7/2020.

The complainant’s representative presented the complainant’s submission.

The complainant commenced employment with the respondent as a Childcare Educator earning €10 an hour. She was later promoted to work as a Manager at the respondent’s Nutgrove Office Park, facility. Her employment ceased on O2/8/19. Her hours of work varied but were either 7.30 to 4.30, 9 to 5 or 9.30 to 7.30.

She was notified of potential redundancy on 25 June. She was offered alternative employment on the 3 July.

The complainant submitted an RP77 to her employer on 5 January 2020 but did not receive any reply.

On the 3 July, the respondent offered her alternative employment in Barrow St, Dublin 4 which was not a reasonable alternative offer on the following grounds:

Costs

The complainant has one child aged six who attends school in the suburb where she lives and attends breakfast club and afterschool at the same location. The complainant pays by the hour for afterschool, so any extra commute time from Barrow St to the afterschool facility would increase childcare costs, by approximately €300 per month. She could sometimes care for her child in the respondent’s creche if required on a complimentary basis. Barrow St. is too far away from her child’s school in Dublin 12 to collect him on a work break and place him in the Barrow St facility. The complainant explained her family situation to the respondent. She advised them she couldn't afford the change in circumstances given the additional costs involved. While there was free parking at Nutgrove, there is no such facility at Barrow St, which would further add to expense and travel time. Also, if travelling by public transport, she would spend a large amount of additional time commuting.

Consultation

The redundancy consultation process involved two meetings with the Director and the Operations Manager on the 3 and 15 July. No minutes nor notes were taken but they solely involved information gathering. The offer of alternative employment was made at the first consultation meeting, on the 3 July before any meaningful consideration of the complainant’s personal circumstances could have taken place. Only after the offer of alternative employment in Dublin 4 was made were there belated and insufficient attempts made in September to address the concerns raised by the complainant.

 Demotion.

The offer of alternative employment involved a significant demotion from a Manager’s role to that of a Montessori teacher, thus moving from a top-tier management to a 4th tier employee, there being an Assistant Manager and supervisory grades in between.

This was a loss of status and responsibility which could adversely affect her if applying for other employment and therefore it was reasonable for her to refuse the offer.

The complainant relies on a Labour Court Determination, Cosy Tots & Co Ltd t/a Tots and Co. v Ms Nora Boggans (RPD2110). That case involved the same employer and an almost identical set of circumstances where that complainant was asked to step down from the position of Assistant Manager. The Court held that

“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. It is not necessary for the Court to consider the issue of the commute time”

Direct evidence of complainant.

The complainant took an oath in accordance with section 39 (17) of the   Redundancy Payments Acts 1967-2014.

The complainant stated that the offer of a Manager’s position in Beaumont was not credible as staff were not required in Beaumont. She cannot recall the respondent’s exact words to her concerning the offer of a Manager’s position in Beaumont as it was one and a half years ago.

The complainant stated that no fixed hours or salary were offered to her prior to the position being made redundant on 2 August. Terms were not put to her concerning the Barrow St. offer until 5 September.

The complainant confirmed that she was never formally offered a managerial role in Beaumont.

The complainant has been made redundant as her employer has neither provided her with a reasonable alternative nor consulted with her properly in relation to same, given her set of personal circumstances. The complainant maintains that she is entitled to a redundancy payment based on the above set of circumstances.

The respondent’s representative presented the submission.

The respondent submits that the complainant is not entitled to a redundancy payment as she unreasonably refused the offer of suitable alternative employment.

The complainant was employed by the respondent as a Childcare Educator initially and later promoted to Supervisor and Manager thereafter in their Dublin 14 facility. The Claimant worked on average 40 hours per week between the hours of 7.30am and 6.30pm

The respondent was forced to make a commercial and business decision to close its premises in Dublin 14 and continue to operate in its other two locations in Dublin 4 and in Beaumont.

The respondent on the 25th of June 2019 notified the complainant of the business situation and put her on notice that her role could potentially be made redundant. A redundancy consultation process commenced on the 3rd July. A second consultation meeting took place on the 15th of July 2019. As part of the consultation process the respondent offered what it considered to be a reasonable offer of alternative employment as a Childcare Educator in its Barrow Street premises which had its own Manager already in situ. The complainant advised that she was looking at employment elsewhere as the Barrow St offer was problematic. However, there was to be no material change in the complainant’s terms and conditions and she would remain on the same rate of pay as in her previous Managerial role.

Subsequent to the formal consultation meetings, the respondents Operations Manager who had worked alongside the complainant had numerous discussions informally with the complainant in relation to the position of Manager in Beaumont. She offered the position of Manager in Beaumont to the complainant.

The complainant had indicated to the Operations Director that if she was to obtain a house on the Northside (she was on the list for social housing at the time) that she would be very interested in the position in Beaumont. The complainant never informed the respondent formally that she wished to decline the position. It was only when she began writing to the Respondent querying her redundancy payment that it became apparent that she had made up her mind.

Direct evidence of the Operations Director.

The Operations Director took the affirmation as provided for in section 39.17 of the Redundancy Payment Acts 1967-2014.

She confirmed that a Manager’s position had arisen in Beaumont in April. She did discuss this vacancy with the complainant on a few occasions on a casual basis. She knew it would be difficult for the complainant to accept this role. The complainant did not decline this offer but stated that if she secured housing on the Northside of Dublin she would be interested in the offer. On the 31 July, the witness asked the complainant to tell her soon as possible as she could not hold the position open indefinitely. The respondent filled the Manager’s position in Beaumont in an acting capacity. The witness stated that she offered to pay the complainant’s bus fares to assist her.

The complainant never accepted or rejected these offers but left the respondent hanging.

She wanted the complainant to give the Beaumont role a trial. The Operations Director was flexible about hours.

Legal Submissions

 The Respondent relies on section 15(2) of The Redundancy Payments Act 1967-2014 in relation to the claim for a redundancy payment.

 Section 15 (2) of The Redundancy Payments Act 1967 provides 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 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 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 the effect not later than four weeks after the

date of termination of his contract,

(e)He has unreasonably refused the offer.”

 The respondent submits that if there was a dismissal (which is denied), the offer of continued employment under the same set terms and conditions was offered to the complainant at the new location in Barrow Street. She never formally declined either of the two options put to her.

The respondent was willing to make the necessary adjustments to her hours to enable her to meet her childcare obligations and continue to work in either of the two alternative venues offered to her. The respondent specifically referred to discussing all options any training/adjustments (to working hours) etc in their letters to the complainant. They wished to engage and explore all reasonable options open to the parties before a conclusion was reached. They urged the complainant to reconsider and contact them in this regard.

The respondent wrote to the complainant on the 5th of September 2019 and set out the different options open to the complainant in terms of the hours of work in Barrow Street. At the same time the offer in Beaumont was also on the table.

Regarding the alleged increased parking costs in the Barrow St facility, there was never designated staff parking provided at the respondent’s former premises in Nutgrove. There were a number of parking spots available to be utilised by parents. The complainant could use a slot if and when one was available but there was never an entitlement to a parking spot.

The offer of suitable alternative employment was open to the complainant and is indeed still on offer to the complainant in respect of their premises in Barrow Street and/or Beaumont. The complainant has unreasonably refused that offer. It was open to the employee to temporarily accept to move to the unit in Barrow Street and/or Beaumont (per section 15 2A)) in order to ascertain if her concerns were valid. Without having done so, the refusal to work in Barrow Street was unreasonable.

She is not entitled to a redundancy payment.

Findings,

I am obliged to determine the complainant’s entitlement to a redundancy payment in circumstances where entitlement to payment is contested on the basis that the respondent offered the complainant what they genuinely believe to be suitable alternative employment.

Entitlement to Redundancy Payments.

Relevant Law.

Section 7(2)(a) of the Redundancy Payments Acts 1967-2014 provides for a redundancy payment where

“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”.

However, section 15(2) of the Acts can deprive the complainant of an entitlement to redundancy payments (found in section 7(2) above) in the following circumstances:

“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 reengagement would take effect not later than four weeks after the date of dismissal,

(e) he has unreasonably refused the offer”.

Applying these provisions to the circumstances of the instant case, Section 7(2) of the Act determines that a redundancy arises when an employer ceases business in the place of employment, as in this case. It is accepted that the Nutgrove facility, the place in which the complainant had been employed on a continuous basis since 22 June 2016 closed on the 2 August 2019. However, the entitlement found in section 7(2) is qualified by virtue of section 15(2) of the Act where the employer makes an offer of suitable alternative employment and the complainant” unreasonably” refuses the offer. The matter for determination then is whether the respondent’s offer to the complainant of a post as a Montessori Teacher in the Barrow St facility with no change in salary or hours of work amounted to “suitable employment “.

I am guided by the Labour Court Determination, Cosy Tots& Co Ltd t/a Tots and Co. v Ms Nora Boggans RPD2110, whichdecided that a change from the position of Assistant Manager to a Childcare Assistant amounted to

“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”.

I find that the proposed move to the position of Montessori teacher entailing the loss of her manager’s position and answering to an additional two persons in positions of authority above the complainant reveals a level of responsibility below that of her previous role. I find that it does constitute a demotion.

I find that it was reasonable for the complainant to decide that the offer of a Montessori Teacher’s position in Barrow St did not constitute suitable alternative employment.

However, the complainant was verbally offered an alternative role as Manager in the respondent’s Beaumont facility with no loss of status or salary. The respondent stated that they would be flexible in relation to hours. While the respondent may have hoped that earlier discussions and a period of reflection might lead the complainant to accept the Beaumont offer, the terms of this offer were never set out in writing as required by section 15(2(a) nor given effect within 4 weeks of the date of this dismissal.

Even if the respondent’s contention that the complainant was not dismissed and that matters were in a state of flux were to be accepted, the offer of a position in Beaumont is at a greater distance and would involve a longer commute time for the complainant than a move from Nutgrove to Barrow St- aside altogether from its distance from her home and her childcare obligations. That distance and commute time from the Nutgrove facility to the Barrow St facility was addressed by the Labour Court in Cosy Tots & Co Ltd V Bernadette Conn RPD219. The Court held that the time involved in cross- city travel

“leads the Court to the view that it was reasonable for the Complainant to decide that the offer made was not one that constituted suitable alternative employment”

I find that there would have been an additional commute of 40 minutes per day if using a car and a longer commute if travelling by bus.  The distance between Nutgrove and Beaumont is 7 km in excess of the distance between Nutgrove and Barrow St. The Labour Court concluded that that same journey and associated travel meant that the job offer was not one that “constituted suitable alternative employment”

The Labour Court in Mr Garrett Browne Ms Isabella di Simo RPD1914, in assessing the suitability of an offer and the reasonableness or otherwise of a refusal to accept an offer were guided by the decision of the English EAT in Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156, which stated that 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 decide that the complainant’s decision to refuse the offer of a Manager’s position in the Beaumont facility due to the factors personal to her was reasonable.

On the basis of the oral and written submissions and case law, I decide that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts 1967 -2014, in accordance with the following criteria:

Date of commencement: 22 February 2016,

Date the employment ended: 2 August 2019

Gross weekly remuneration: €576.92

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

I decide that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts 1967-2014, in accordance with the following criteria:

Date of commencement: 22 February 2016,

Date the employment ended: 2 August 2019

Gross weekly remuneration: €576.92

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Redundancy; suitable alternative employment