Complainant

Respondent

Parties

Niamh  Ryan

Corporate Catering Services Limited

Representatives

Pat O Donoghue SIPTU

Muireann McEnery IBEC

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-00039837-001

15/09/2020

The Complainants employment was terminated when a third party customer location (Roche Ireland) she was working closed its operations and she refused to move to another location on the basis the distance, cost, disruption to family life and extra travel time involved was not reasonable and she claimed she was entitled to redundancy.

This is a claim under the Redundancy Payment Act whereby the Complainant has not been provided with her statutory entitlement in breach of the legislation. The Complainant had been employed by the Respondent as a Catering Assistant at a premises in Clarecastle Co Clare where it provided catering services for the Roche manufacturing facility. The Complainant is seeking to ascertain her entitlement to a redundancy payment and the Respondents failure to provide same in breach of the Act.

The Complainant had been engaged by the Respondent under a contract of employment since November 2002. The complaint was a permanent employee and had provided approximately 18 year of service to the Respondent principally at the Roche site in Clarecastle. On the 27th of March 2020 this contract ceased due to the closure of the manufacturing plant and the complainants employment was terminated.

Of central relevance to this matter is that the Complainant is unable to drive and for the currency of her employment at Roche she has either walked or cycled to work. She submitted that when she had been required to attend work early she was collected by her supervisor Mr Liam Walsh as required. The Respondent was well aware of the Complainant's reliance on the proximity of her workplace given her lack of independent transport.

Prior to the closure of this site the Respondent had engaged with the Complainant in respect of the impending redundancy situation. The 1 st consultation in the regard was held on the 9th of January 2020 on a collective basis. There was a second collective consultation on the 23rd of January with an individual consultation in the intervening period on the 16th of January.

On the 29th of January the Respondent communicated the ceasing of the operation in Roche by way of letter and identified a date of the 27th of March. As it transpired the operation at the site ceased prior to the 20th of March due to COVID restrictions.

The Respondent references a second one to one meeting on the 2nd of March which involved Ms Homes, Mr Vaughan and the Complainant. At this meeting the Respondent alleges that the Complainant requested a change in her shift pattern and that the Complainant changed her request subsequent to this meeting by way of letter on the 5th of March. The Complainant submitted that  the Respondent had informed her at this meeting that she would have to consider day shifts at this site. The Complainant agreed to consider this but would have to consult with her husband. The Complainant and her husband both work and she had to ensure that one of them was available for childcare. On consulting with her husband the Complainant deemed that day shift as unsuitable and informed the Respondent accordingly. The Complainant sought to retain her existing shift pattern in respect of evening and weekend work as she had arranged her childcare requirements around this.

On the 26th of March the Respondent altered their offer of alternative employment to include one site as opposed to a role over two sites as previously offered. This was ultimately rejected by the Complainant as unsuitable. The Complainant had several conversations with Mr Vaughan outside of the context of the two meetings on the 16th of January and 2nd of March. These conversations concerned the topic of her proposed relocation to an alternative site and the Complainant had put her concerns directly in these exchanges in addition to the two formal meetings.

In one such conversation it was suggested to the Complainant that she could move to the

Bunratty site and she could then be relocated to a site closer to Ennis when this became available. The site at Cahercalla nursing home had been suggested in this regard. It was submitted that the Respondent engaged in these discussions as they were aware of the Complainants inability to work outside of the proximity of Ennis without specific transport arrangements. The Complainant was unable to agree to this suggestion as no specific offer of alternative employment had been made outside of the Bunratty site.

On the 7th of April the Complainant wrote to the Respondent outlining her position in respect of this proposed transfer. The Complainant again outlined her reasoning as she had done previously including her particular circumstances and the disruption a relocation to the Bunratty site would entail. On the following day the Respondent wrote to the Complainant informing her of the termination of her employment.

The Complainant alleged that the Respondent has failed to provide her with her statutory redundancy entitlement. The Complainant rejected the contention that she had rejected suitable alternative employment and as such resigned her position in these circumstances. The Complainant submitted that that the Respondents offer of alternative employment was not suitable on the following basis:

The Complainant had established a pattern of employment which allowed for her commute to work independent of the requirement for a car. The Complainant had been employed at this location for approximately 18 years and her employer was fully aware of her transport arrangements. The complaints was in a position to walk or cycle to work as required.

The offer of alternative employment at Bunratty was a considerable extra distance from her usual place of work and would require public transport or car pooling with co workers to travel to work.

The Complainant submitted that the Respondents 'research' into the bus routes connecting Bunratty and Ennis was deficient. The Complainant submitted that there did not exist a 24/7 bus route and that the two possible buses which pass do not operate after 12 midnight. Where the Complainant is working an evening shift she might not finish until this time.

Additionally, the Complainant considered the public transport arrangements and concluded that even for a day shift, and for example finishing at 4pm she would not arrive in Ennis until 5.30. Likewise, to arrive at work for 7am she would have to leave Ennis at 5.30am. This was a considerable change to her working arrangements.

In respect of the prospect of car pooling the Complainant had considered this but in respect of the two other colleagues it was proposed would be working in Bunratty both live outside of Ennis. It was unreasonable to expect either to firstly travel in the opposite direction from their place of work in order to collect the Complainant.

In Cambridge and District Co Operative Society Ltd v Ruse [1993] I.R.L.R 156 a decision of the UK EAT considering a similarly worded provision in respect of suitable alternative employment it was concluded that "the suitability of the employment is an objective matter, whereas the reasonableness of an employees refusal depends on factors personal to him and is a subjective matter to be considered from the employee 's point of view "

It was submitted that in this case there did not exist an offer of suitable alternative employment and the Complainant had not been unreasonable is refusing same in light of the foregoing facts and above provisions. Consequently, the Complainant claimed all relief in accordance with the legislation.

The Complainant alleged that she is entitled to a Redundancy payment that she did not receive. The Respondent refuted this allegation in its entirety as the Complainant unreasonably refused two separate offers of suitable alternative employment. The Respondent engaged in a meaningful consultation with the Complainant and was pleased to be in a position to offer a choice of two suitable alternative roles. The Complainant unreasonably refused both offers. 

In those circumstances the Complainant cannot be entitled to a Redundancy payment within the meaning of Section 15 of the Act which clearly states that there is a disentitlement to a Redundancy payment in the event of an unreasonable refusal of suitable alternative employments. 

Corporate Catering Services Limited known as CCSL was established in 1991 by the owner of the company Mary Healy. CCSL provides catering for companies on their sites. CCSL’s core business is within the 32 counties covering Clare to Dublin and Wexford to Belfast.

The Complainant was employed by the Respondent from 19 November 2002 and was provided with a permanent Contract of Employment. A copy of the Complainant’s Contract of Employment was supplied.    

In December 2019 there was a substantial reduction in the Respondent’s catering requirements at the Roche site in Clarecastle  due to downsizing leading up to the planned closure of their site.

To try and avoid any redundancies, the Respondent decided to implement cost saving measures including changes to employees’ rostered hours.  Roche advised the Respondent that they would be closing their site at Clarecastle in March 2020.  

On 9 January 2020, a consultation meeting was held between Mr John Vaughan, Regional Operations Manager, Ms Caroline Holmes, HR Manager and representatives from Roche. The Complainant attended this meeting. The purpose of the meeting was to advise staff of Roche’s closure and to reassure the team that all efforts would be made to find alternative roles for all employees and to avoid any redundancies.

On 16 January 2020, in line with fair procedures, one-on-one consultation meetings were held with each member of the team and Mr Vaughan and Ms Holmes from management. In the Complainant’s meeting she was advised that no vacancies were to be filled on a permanent basis in the Shannon region to ensure CCSL had alternative roles to offer to the entire Roche team.  She was further informed that jobs would become available, and a list of vacancies would be shared with the Roche team.

At the same meeting, the Complainant was asked to input her views and to inform management of how she felt about the possibility of an alternative role. The Complainant advised she could be flexible but would prefer weekdays. She also informed management that she doesn’t drive so would need the alternative role to be in a location with public transport or possible car share. The Respondent thanked her for her input and advised that there would be a follow up meeting the following week. All employees were provided with a Self-Assessment Skills Matrix which was to be completed prior to the next meeting.

On 23 January 2020, Ms Holmes and Mr Vaughan met again with the Roche Catering team and the Complainant was again in attendance at this meeting. Although previously requested to do so, the Complainant failed to fill in the Self-Assessment Skills Matrix form but verbally advised management that she would prefer not to work evenings.

The Respondent subsequently received the completed Self-Assessment Skills Matrix from the Complainant some weeks later. At the same meeting, the Respondent informed the Complainant that they would enquire about an alternative role on the Bunratty site. Mr Vaughan agreed to arrange a site visit for the Complainant. The following day on 24 January 2020, the Respondent received a letter from the Workplace Relations Commissioner (WRC) informing them that the union SIPTU had referred in the case of “Redundancy Terms concerning 4 Catering Assistance, Roche Site, CO Clare”. 

On 29 January 2020, on behalf of the Respondent, Ibec wrote back to the WRC acknowledging receipt of their letter and advised that the option of entering conciliation at that time was premature as the Respondent was still in the process of making all possible efforts to avoid a redundancy situation. The company were still trying to locate suitable alternative roles for all individuals in the Roche’s team.  That same day the Respondent wrote out to the Complainant regrettably confirming that the Roche’s site will be ceasing operation on 27 March 2020 and that she is formally being given notice that her role is at risk due to redundancy. The Respondent did reiterate however that as previously communicated, all continued efforts would be made to find a suitable alternative role for the Complainant. The Respondent empathised with the Complainant’s situation but reassured her that the company would do everything that they could to support her.

On 10 February 2020, Ms Holmes wrote out to the Respondent’s senior team advising of discussions that had been held with SIPTU and that the company were continuing to work on identifying alternative roles for all Roche’s catering team members. In the same email, Ms Holmes outlined that SIPTU were aware that when alternative roles were put to the team, they were met with reasons why they were not suitable,  giving the impression that the individuals would rather take redundancy.  Notably however Ms Holmes further stated in the email that SIPTU confirmed that they would consider roles in Bunratty and Shannon to be suitable locations. Additionally, Ms Holmes confirmed that were redundancy to be offered it would only be statutory redundancy pay however the company would rather keep the experienced staff in alternative roles rather than make them redundant.

On 2 March 2020, a meeting was held between the Complainant, Ms Holmes and Mr Vaughan. At this meeting the Complainant advised that were a suitable alternative role be located for her, she would prefer if it did not involve working the same working pattern that she was most recently working which included weekends and evenings.  Only 3 days later, on the 5 March 2020 the Complainant wrote to Ms Holmes outlining that she had changed her mind and now wished to keep her most recent work pattern of a two-week rota of alternating weekends.

Later that same day, Ms Holmes wrote to the Complainant highlighting that she was delighted to be in the position to offer her a suitable alternative role. Ms Holmes stated that the company did their best to accommodate all wishes made by the Complainant to avoid a redundancy situation and so they had identified a catering role across two of the Respondent’s sites – Shannon and Bunratty Folk Park. Both locations that had been previously confirmed by SIPTU as suitable alternative locations.

The work pattern that the Respondent was able to offer consisted of working alternate weekends in Shannon and daytime hours in Bunratty which was consistent with the Complainant’s wishes. 

On 18 March 2020, the Complainant texted Ms Holmes rejecting the suitable alternative role offer. She outlined that her reasoning behind her decision was that the alternative role was not a suitable alternative. 

On 26 March 2020, Ms Holmes wrote to the Complainant acknowledging her text message that was sent on 18 March 2020 and stated that despite their disappointment with her decision, they have taken on board her feedback and have looked to try find a solution to this issue. The Respondent was pleased to offer a second suitable alternative role which would only be in Bunratty instead of two separate locations and would consist of her desired work pattern. The role would also be a permanent role. In the same letter Ms Holmes went further to say that the company have researched public transport routes and were pleased to inform the Complainant that there is an hourly bus that runs to and from Bunratty on a 24/7 basis. Ms Holmes confirmed that the company would be happy to arrange her start and finish times to align with the bus’s timetable. Finally, Ms Holmes stated that were the Complainant to reject this second offer, she will have been deemed to have resigned from her role with the company effective 27 March 2020.

On 7 April 2020, Ms Holmes wrote out to the Complainant advising her that the Respondent had not received any correspondence in response to her letter dated 26 March 2020 and requested her to please advise the company of her decision at her earliest convenience.  Later that same day the Complainant wrote back to Ms Holmes informing her that she had declined the second role offered to her and instead requested a redundancy payment.

On 8 April 2020, Ms Holmes wrote back to the Complainant acknowledging her email dated 7 April 2020 and expressed her disappointment in her rejecting the company’s second offer of alternative employment. Ms Holmes explained the company’s position in this matter including details on the two job offers and how the company did their utmost to facilitate the Complainant.

Ms Holmes clarified that because the Complainant had rejected a second offer of employment which they believe to be a suitable alternative role then the Complainant is deemed to have resigned from the company effective 27 March 2020. Ms Holmes advised that all appropriate arrangements would be made with payroll and thanked the Complainant for her years of service and wished her all the best for the future. 

On 15 September 2020, the Complainant appealed this decision to the Workplace Relations Commission.  

The Complainant has alleged that she is due a Redundancy Payment.  The Respondent refuted these allegations in their entirety as the Complainant was offered two suitable alternative roles which she rejected. The Complainant was put at risk of redundancy on 29 January 2020 was given the opportunity to engage in meaningful consultation with the Respondent until the Complainant was deemed to have resigned with effect 27 March 2020. If an employee refuses suitable alternative employment, then section 15 of the 1967 Act provides that an employer can refuse to make a statutory redundancy payment.  The Respondent refuted that the Complainant is entitled to a Redundancy Payment and contends that the redundancy process was aligned to fair procedures and natural justice. The Complainant engaged in meaningful consultation with the Respondent, and it was solely her own decision to reject the two roles. The Respondent argued that both roles were suitable alternatives roles to her original role. 

Case law states that suitable alternative employment does not need to be an exact match to a previous position. However, both the previous role and the proposed alternative should be assessed by employers to ascertain whether, on balance, it can be said that the new position is not substantially different or on less favourable terms than those attaching to the previous role.

In the case of Dillon v Kavanagh Construction, the Respondent ran a construction maintenance business. The Complainant was offered an alternative at the Beamish and Crawford site in Cork with the same hours and rate of pay.  The Complainant complained that no parking space would be provided and also stated that the new position would involve more manual work.  It was held that the new offer constituted suitable alternative employment.

Similarly in this case,  the Respondent argued that the second role offered was in the one location, Bunratty instead of two separate locations and would consist of the Complainant’s requested work pattern and the same rate of pay.  The role was also in a location that her union, SIPTU, previously agreed was a suitable alternative location.

By means of supporting the Complainant even further with the proposed re-deployment, before offering the second role as a suitable alternative, the Respondent researched public transport routes. The Respondent noted and took on board feedback the Complainant had provided in consultation regarding their inability to drive and therefore were delighted to be able to assist the Complainant with this issue. The company also informed the employee that they would be very flexible with her start and finish hours to help accommodate bus hours. At the time the second role was offered to the Complainant, the Bunratty premises was open and the role most definitely was not redundant. It was only due to the Complainant’s delay in responding that the situation changed, and in the interim unfortunately Bunratty Folk Park had to close due to the Covid pandemic. 

It should be noted that before Bunratty Folk Park closed, two former employees of Roche were offered and subsequently accepted roles at Bunratty Folk Park. Once it closed, these two employees were laid off along with other Bunratty employees and  received  the Pandemic unemployment payment (PUP).  Until such time as hours became available on a relief basis and one of the employees  accepted relief work when it was available.

It should also be noted that all CCSL employees from the Roche site are currently working in other CCSL clients sites in the Shannon region. (Bar 2 who retired). CCSL did everything possible to avoid redundancies and none of the Complainant’s former colleagues from the Roche site were made redundant. 

In conclusion, it was the Respondent’s position that the Complainant is not due a redundancy payment as she rejected two suitable alternative roles that were offered to her during the consultation period. An employee is not entitled to a Redundancy payment if they have been reengaged or employed under a new contract of employment and those terms and conditions do not differ from a corresponding provisions of the contract in force immediately before the termination of the contract or the employee has unreasonably refused the offer. 

Equally an employee will not be entitled to a Redundancy Payment if the employer has made an offer in writing to renew the employee’s contract of employment or to reengage them under a new contract and the offer constitutes an offer of suitable employment in relation to the employee which the employee has refused.

The Respondent contended  that the process utilised was fair and reasonable and in line with natural justice and fair procedures. The Respondent requested that this claim fails.  

The Law;

Section 15.2 of the Act outlines the following:

“An employee who has received the notice required by section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal-

his employer has offered to renew that employee's contract of employment or to re-engage him under a new contract of employment

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 his dismissal

the offer constitutes an offer of suitable employment in relation to the employee,

the renewal or re-engagement would take effect not later than four weeks after the date of dismissal, and

he has unreasonably refused the offer.”

There was no dispute that the type of work offered was similar to the type of work the Complainant did at Roche so therefore the only issue for consideration is the suitability of the location of alternative employment made by the Respondent to the Complainant and whether the Complainant’s decision to refuse such an offer was reasonable in all the circumstances. As quoted above and key to this Decision is the judgement In Cambridge & District Co-operative Society Ltd v Ruse[1993] I.R.L.R. 156 the English EAT, when considering the similarly worded provisions of the British legislation, said, at page 158, 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”.

The Contract of employment had no clause (and therefore no mobility clause) in it regarding location and therefore the history of where the Complainant worked and how she got to and from work is relevant to the assessment of the complaint.  It is not necessary to delve into the issue of whether the Complainant had an implied term in her contract regarding location, by virtue of both the fact her contract did not contain a location clause and she worked primarily at the Roche site for the vast majority of her employment but suffice is to say to do so would not work against the Complainants complaint.

The Complainant primarily worked alternative weekends (7pm to midnight)  and weekdays (7am to 3pm) and either walked or cycled to work normally. Walking took 40 minutes and cycling took about 20 minutes. The Complaint varied her way to work between these two means but stated she mainly cycled. Sometimes her husband would collect her when she finished at midnight or the Complainant would take a taxi home for either safety or weather reasons, or both. The taxi cost about 20 Euros per week. The Complainant does not drive a car.

The Respondent put a final offer in writing to the Complainant which involved working two locations. The first location was in Shannon on both Saturday and Sunday   It is not clear from the Respondents letter whether the start time was 7am or 7pm in Shannon (from the Respondents submission it was probably 7pm) and a start time between 7.30am and 11am when working weekdays in Bunratty. The Respondent seems then to have made an offer of working in Bunratty only. The Respondent stated they were willing to be flexible to suit bus timetables. However, the Complainant argued this was not her normal pattern which was evenings and or weekends and she had this arrangement to align with her husbands work pattern as they had 4 school-going age children (at the time) and one of the parents were able to be at home most times.  

The fundamental issue here is the Complainant would have to go by bus to work each day involving up to and possibly more than an hour each way. The cost of the bus fare to and from Bunratty for 5 days is in the region of 50 Euros plus the cost at weekends of about 20 Euros. While taxi travel may not have been necessary in these rotas the Complainants access to bus routes would be difficult from her home location and involved considerable more time. She had previously worked closer to her home and which suited both her personal family needs and the fact she did not drive. Either way the new offer amounted to considerable more time traveling to work and significant extra cost for the Complainant, plus the disadvantage of being much further from home when she finished at midnight and this would involve a greater amount of disruption to her family life if her husband had to collect her or extra cost of she had to take a taxi.

Ideally in the Adjudicators assessment of the situation, this issue would have been resolved directly by the Parties by finding some compromise between the Parties. Both sides made a strong case to support their position and the Act requires I find in favour of one Party. The Adjudicator accepts that the Respondent acted at all times in a bone fide manner in their attempts to retain the Complainant in the Respondent’s employment by endeavouring to find suitable employment. However, the new location involved both significant extra travel time, possibly different shifts, disruption to personal life and extra costs for the Complainant in both bus fares and possibly taxi fares, if required. No offer of compensation for the inconvenience of transferring to a new location was made by the Respondent. To that extent, the Adjudicator determines that the Respondent, from an objective perspective, does not satisfy the test set out by the English EAT in Cambridge.

At the Hearing the Respondent made out that there was an agreement with SIPTU that the Bunratty site was a suitable alternative however no evidence was provided to support this assertion.

With regard to precedent the Adjudicator is guided by the Labour Court decision in Summeridge Ltd V Derek Byrne (RPD211) which concluded as follows; “In determining the final aspect of the within appeal, However, having considered the Complainant’s evidence, the Court is equally of the view that the change involved in moving from working in Liffey Valley where the Complainant could get to and from work in a matters of minutes with no additional costs, to working in a city centre location with the additional commute times, related costs and the difficulty of getting home after his late shifts when public transport would not be available, is a change of such magnitude, when considered from the Complainant’s subjective perspective, that the Court has to find that his refusal to accept the move to the Harbour Master Bar was not unreasonable.” The situation in this case is similar and having considered the submissions and evidence I find the Complainants arguments more persuasive on the basis that the commute involves considerable more travel time, significant extra costs in bus or taxi fares, disruption to her personal lifestyle built up over many years working for the Respondent at Roche  and a possibly a change in shift pattern from the norm established over the years of her employment.  For the sake of clarity, this decision is unique to the Complainants circumstances.

The Complainants appeal is successful and she is entitled to be paid statutory redundancy on the following basis;

Start date; July 15th 2002

End Date;  March 27th 2020

Gross Wage Per week; 420 Euros Gross per week

Redundancy