Complainant

Respondent

Parties

Boguslaw  Szmuc

Hearthill Interiors Limited

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-00043889-001

05/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043926-001

06/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043887-001

05/05/2021

The Complainant stated that he commenced employment as a general operative/fixer with the Respondent on 22 September 2014 and was paid a gross/net weekly wage of €690/€640. He stated that he was entitled to a redundancy payment because the Respondent had no work available close to his home in Tipperary. It was also asserted that the only work available was in Cork which was not suitable because of the Covid restrictions in place at the time. He also alleged that he was not paid in respect of either his outstanding holiday pay or the bank holidays he was entitled to during the period of temporary lay off.

The Complainant stated that on 30 September 2020 he was told by the foreman at the site in Limerick where he worked that he was being placed on temporary lay off. Having been informed of this, he asked for the required paperwork so that he could collect his social welfare entitlements. He alleged that he heard nothing from the Respondent after this and wrote to them on 24 November 2020 seeking an update on his job situation as well as looking for his outstanding annual leave to be paid. He was informed by reply that there was work in Cork which he had chosen not to take in September but that was still available. The Complainant replied and asked if he would be reimbursed for travelling to Cork and he was told that the Respondent would be providing hotel accommodation. The Complainant stated however that he did not wish to stay in hotel accommodation as a result of COVID. He also said that he had worked in Cork and Dublin in the past. He further stated that some of his colleagues had returned to work for the Respondent in Limerick and that he should have been given the opportunity to do likewise. The Complainant also alleged that he received an email from the Respondent in January 2021 stating that he would need confirmation of his tax credits before his outstanding holidays could be paid to him.

The Respondent stated they were directed by the client on the Limerick site on which they were engaged to finish up on 30 September 2020. The Complainant along with all of his colleagues was informed that there was other work available in Cork starting the following day if they wished. The Complainant did not arrive on site in Cork the following day and the Respondent did not hear from him again until 24 November 2020 when they received an email from him inquiring about the work situation. The Respondent informed the Complainant by reply that there was still work available in Cork if he wished to go there. A number of the Complainant’s colleagues chose to go to Cork while others found alternative employment closer to home. 

It was also stated that two of the Complainant’s colleagues were re-engaged at the site in Limerick but that, unlike the Complainant who was a General Operative, these two employees were qualified carpenters whose re-engagement had been specifically requested by the client

CA-00043889-001:

THE LAW

Section 15 of the Redundancy Payments Acts 1967 to 2014 provides as follows:

(1) An employee shall not be entitled to a redundancy payment if —

(a) his employer has offered to renew that 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 not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d) he has unreasonably refused the offer.

(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.

FINDINGS

The Respondent stated that he was informed by the main contractor on 30th September 2020 that all of his workers had to finish on the site in Limerick on which they were engaged. He further claimed that the only other work the company had was in Cork and that this was made available to all of the employees on the site in Limerick.

The Complainant asserted that he was only made aware of the availability of work in Cork in November 2020 when he inquired about the availability of work generally and highlighted that the Respondent had made no effort to contact him in the two month period since he had been laid off in September 2020. He also stated that the offer of work in Cork was unsuitable, that he was therefore effectively dismissed from his employment and was entitled to a redundancy payment.

In making my decision, I note that in the case of Cinders Ltd v Byrne RPD1811, the Labour Court held that the issues to be considered were “(i) the suitability of the offers of alternative employment made … on behalf of the Respondent to the Complainant; and (ii) whether the Complainant’s decision to refuse each of those offers was reasonable in all the circumstances.” Relying on Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156, the Labour Court stated that “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”.

Specifically, the Labour Court held that it was reasonable for the employee to refuse to move from a standalone store in the Merrion Centre, Dublin 4 to a concession within a department store in Blanchardstown or St Stephen’s Green, but unreasonable to refuse to move to a standalone store in Wicklow Street, Dublin 2 (a distance of about 6km from the Merrion Centre). The Court held that “there was no significant difference between the working environment she would have enjoyed in Wicklow Street and that she had experienced for the previous twenty or so years of her working relationship with the Respondent.”

The legal test set out in Cinders Ltd v Byrne and Cambridge & District Co-operative Society Ltd v Ruse is therefore that the suitability of an alternative offer of employment should be assessed objectively as well as from the subjective perspective of the employee.

The legal test as set out by the Labour Court above requires consideration of the objective and subjective elements of the new role offered to the Complainant. Objectively, this was largely the same role he had been doing in Limerick. Subjectively from the Complainant’s point of view, however, it was unsuitable. Specifically, he asserted that it was too far to travel from his home, COVID was still prevalent and two of his colleagues had been re-engaged on the site in Limerick, where he had been working until September.

Having regard to the legal tests cited above as well as the Complainant’s particular circumstances, I find that, even if I accept the Complainant was not made aware of the availability of work in Cork until November 2020, it was unreasonable of him to refuse to travel to Cork because he had worked there in the past. He had also stayed in hotel accommodation in Cork previously which the Respondent had provided and which was on offer on this occasion. While I noted his concerns about Covid, there were no travel restrictions in place at the time, the construction sector was operating as normal and there was no suggestion that the accommodation provided by the Respondent was not operating in accordance with strict COVID guidelines. I also noted the issue the Complainant highlighted surrounding the re-engagement of two of his colleagues at the site in Limerick but must recognise that, unlike the Complainant who was a General Operative/Fixer, these two employees were qualified carpenters whose re-engagement had been specifically requested by the client and that six more of his colleagues were not brought back onto the site in Limerick.

In light of the foregoing, I find that the Complainant unreasonably refused the offer of alternative employment in Cork and is therefore not entitled to a redundancy payment in line with section 15 (2) above.

CA-00043926-001

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(a)   4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment).

(b)   One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)    8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)

It was accepted and agreed by both parties at the hearing that as the Complainant worked with the Respondent up to 30 September 2020 and that he can only accrue annual leave while he is in work, he was entitled to 7 days annual leave which he had not been paid in respect of the 2020/2021 leave year.

I find therefore that this complaint is well founded.

CA-00043887-001:

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

I note that the complaint was referred to the WRC on 5 May 2021 and that there were five public holidays in the cognisable period, namely 25th and 26th December 2020 as well as 1st January, 17th March and 5th April 2021. As highlighted above, I am satisfied that the Complainant effectively terminated his own employment with the Respondent when he refused to travel to Cork in November 2020. Given that he was not therefore an employee of the Respondent after November 2020, he was not entitled to a payment for any of the public holidays in the cognisable period.

Accordingly, I find that this complaint is not well founded.

CA-00043889-001:

I do not allow the Complainant’s appeal and find that he is not entitled to a redundancy payment for the reasons set out above.

CA-00043926-001

I find that the complaint is well founded for the reasons set out above and that the Respondent should pay a net amount of €896 to the Complainant.

CA-00043887-001:

I find that the complaint is not well founded for the reasons set out above.