Complainant

Respondent

Parties

Gerard  Sheehy

McMahon Concrete Products Limited

Representatives

Aoife Hennessy, Sweeney McGann Solicitors

Edmond J Dillon , Edmond J. Dillon Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00042785-001

02/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00042785-002

02/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042785-003

02/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00042785-004

02/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042785-005

02/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00042785-006

02/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00042785-007

02/03/2021

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

CA-00042785-008

02/03/2021

The Complainant commenced his employment with the Respondent on 20th March 2006 as a General Operative at the Respondent’s premises in Knockinboheen, Foynes Road, Ardagh, Co. Limerick. His employment was terminated on 4th January 2021. At the relevant time he was paid €626.44 gross weekly.

The Complainant referred the above listed complaints to the Director General of the WRC on 2nd March 2021. At the adjudication hearing the following complaints were withdrawn:

CA-00042785-001- under section 7 of the Terms of Employment (Information) Act, 1994

CA-00042785-002 - under Section 8 of the Unfair Dismissals Act, 1977

CA-00042785-003 - under section 6 of the Payment of Wages Act, 1991

CA-00042785-004 - section 7 of the Terms of Employment (Information) Act, 1994

CA-00042785-005 - section 6 of the Payment of Wages Act, 1991

CA-00042785 -008 - under section 27 of the Organisation of Working Time Act, 1997

Correspondence informing the parties of the arrangements for the adjudication hearing scheduled for 1st September 2022 issued on 19th July 2022. The adjudication hearing was arranged to be held in person. The Respondent’s solicitor furnished a written submission to the WRC on 30th March 2022. However, there was no attendance by, or on behalf of, the Respondent at the adjudication hearing.

I am satisfied that the Respondent was on notice of the hearing.

There has been no communication from, or on behalf of the Respondent post-hearing explaining the Respondent’s non-attendance. 

On 28th September 2022, the Complainant’s solicitor forwarded to the WRC correspondence she received on that date from the Respondent’s solicitor’s which was dated 28th July 2022 and stated as follows.

“Previous correspondence and the Order made by the Adjudicator of the WRC refers.

Having spoken with our client and it’s accountant, the position is that our client, whilst it accepts the position as regards redundancy in respect of your clients, is simply not in a position to discharge the said redundancy payments.

We would respectfully suggest that your clients would take the matter up with the relevant Fund managed by the Department.”

It is unclear what “Order made by the Adjudicator of the WRC” the letter refers to.

In excess of five weeks has elapsed since the day of the hearing until the decision in the within case was issued. There has been no communication from the Respondent.

The Complainant’s representative submits as follows.

The Complainant was employed by the Respondent since 20th March 2006 as a General Operative at its premises in Knockinboheen, Foynes Road, Ardagh, Co. Limerick. He was promoted to a Precast Concrete Fabricator during his time with the company. The Complainant’s weekly pay was €626.44 gross.

Since the commencement of his employment, the Complainant’s place of work has always been Knockinboheen, Foynes Road, Ardagh, Co. Limerick. The Complainant lives approximately 2 km from this location and his familial arrangements were built around the proximity of his workplace to his home.

The Complainant was very happy working for the Respondent and took great pride in his work.

The Complainant’s working hours were 8.30am to 5pm Monday to Friday, with a mandatory 30-minute unpaid morning break and lunchbreak, totalling 37.5 hours each week.

At the end of December 2020, the Complainant observed the dismantling of the plant at Knockinboheen. By this date there was a general awareness of the employees of ongoing court hearings in relation to the continuance of the Respondent’s work in this location. However, the Respondent never directly consulted with the Complainant (nor, to the best of the Complainant’s knowledge, other employees) in relation to the plans for the business nor in relation to potential relocation to another site. While there were some rumours / informal discussions amongst colleagues that the site might be relocated, possibly to Birdhill, it was never made clear to the Complainant what site had been selected, when this move would take place and/or whether there might remain work available on the Knockinboheen site for a period of time for the Complainant.

On 31st December 2020, the Complainant was on annual leave. The Complainant was due to return to work as normal on Monday 4th January 2021, but had noted that there appeared to be dismantling of the site taking place. The Complainant then approached Mr. M of the Respondent on 31st December 2020 and asked him to confirm that his role would continue as normal in Knockinboheen, on Monday 4th January 2021. Mr. M responded by saying that he didn’t know and when asked about the rumour of a move to Birdhill, Mr. M advised that the move would be completed in a week or so. The Complainant was very taken aback by this development and advised that he would not be in a position to commute and work in Birdhill and, therefore, queried what options were available to him.

The Complainant arrived at work on Monday 4th January 2021. There appeared to be a lot of movement around the site in relation to the dismantling of the site. The Complainant had arrived with his brother, and on arrival waited in their vehicle as they were unsure what was going on and if it was safe for them to be walking around the site. At 8.34am they sent a text message confirming their arrival and Mr. M came out to their car to speak with them. The Complainant was then advised that there was no work for him despite the fact that other colleagues were working on the site.

By email dated 4th January 2021, the Respondent formally advised the Complainant that the Respondent’s business would be relocating to Birdhill, Co. Tipperary effective from 4th January 2021. This was the first time the Respondent had formally confirmed the rumours in relation to a potential relocation to the Complainant. There was no consultation or discussion with the Complainant in relation to the proposed change and/or any exploration of any alternative options other than as set out in the letter.

The Respondent informed the Complainant that there would be no work of any kind continuing in Knockinboheen going forward and that, if the Complainant wished to continue working with the Respondent, the only work available would be in Birdhill.

The Respondent has submitted that a relocation to Birdhill is reasonable and has stated in its email of 4th January 2021 that Birdhill is a 25–30-minute drive from Knockinboheen. The commute is in fact a 60km drive, which would take 58 minutes, according to “Google maps” but in reality, can take longer than this due to issues such as school traffic and other time of day issues. It should also be noted that for sizeable sections of the roadway the road is a single carriageway in an area that is regularly used by slow moving large vehicles (trucks, agricultural vehicles, etc.) and so it is often the case that traffic can build up and travel slowly during peak times.

The Complainant has been unable to take up work in Birdhill due to the significant impact the commute would have upon his domestic responsibilities. The Complainant lives with his elderly mother and provides ongoing support and care for her throughout the day.  The Complainant’s father suffers from dementia and Parkinson’s disease and lives in a care home. The Complainant assists his mother, including arranging visits to his father’s care home, arranging medical appointments and other general assistance. The Complainant also lives close to his brother and assists with childcare for his four nieces and nephews throughout the week.

While working in Knockinboheen, the Complainant’s commute was a 2/3 minutes from his home so would be available at home until 8.13/8.20am and again from 5.10/5.15pm. The Complainant also travelled home for each of his break periods so was available to assist and attend to his family responsibilities before and after work and as required throughout the day.

The alternative role offered to the Complainant was not suitable for the following reasons.

Geographical area – the proposed location was not reasonable or achievable for the Complainant and no effort was made to take into account that the Complainant had never had to travel further than 2 km from is home to the workplace in the past 15 years and this would have cause significant difficulties for the Complainant. Firstly, the Complainant does not own a car and is not in a position to purchase one.  

The Complainant lives with his elderly mother who has had significant health issues in the last number of years. As the Complainant has worked so close to home, he would come home every lunchtime and after work to care for her. The Complainant’s father lives in a nursing home and the Complainant takes turns taking his mother shopping and going to the nursing home. The Complainant’s mother requires a great deal of care and needs assistance with almost all basic tasks.

Commute – the Complainant has had a 2 km / 3-minute drive to his place of work for over 15 years. This is vastly different to 60 km / 58-minute drive. The commute to and from his workplace would be substantially different. In order to access the new location, the Complainant would meet very heavy traffic which would be unavoidable whatever route he takes, it requires travel through heavy urban areas and school and business route. The Complainant would be required to leave home earlier and would get home later which would cause significant difficulties in respect of his mother’s care.

The Complainant could not afford such a high level of mileage.

The Complainant submits that this is not a suitable alternative.

The Complainant also submits that he did not receive proof of his employer’s inability to pay redundancy (statement of affairs).

Applicable caselaw

The Complainant’s representative relied on the following caselaw in support of his claim:

Ethel Ryan v Tesco Ireland Retailers ADJ-00032597, Hudson v George Harrison Ltd EAT 0571/02, Executors of Everest v Cox (1980) ICR 415, Cambridge & District Co-operative Society Ltd. V Ruse [1993] I.R.L.R 156, Cosy Tots & Co Ltd. V Bernadette Conn RPD219, Summeridge Ltd v Derek Byrne RPD211.

Application of the above legal principles to the within case

It is submitted that in this case, there is no dispute in respect of the fact that the Respondent made a decision to cease carrying on work in Knockinboheen site where the Complainant had been employed for 15 years. In these circumstances, it is submitted that this situation clearly falls within section 7(b) of the Redundancy Payments Act, 1967.

It is accepted that in circumstances where an employer decides to discontinue the carrying out of work at particular site, the employees of that site might not be entitled to a redundancy payment if those employees are offered suitable alternative work at a suitable alternative location. In this case, the alternative location offered by the Respondent was some 60 km from the Complainant’s original workplace and therefore involved a commute of a minimum 1 hour to and from work each day. It is submitted that applying a subjective test to the Complainant’s consideration of this proposal, it was not a suitable alternative position for the Complainant to take up and that, in the circumstances, the Complainant did not refuse a suitable alternative role proposed by the Respondent.

Furthermore, it must be noted that there was a total failure on the part of the Respondent to consult with and/or engage with the Complainant before presenting the Complainant with an ultimatum in relation to these significant changes to his work arrangements.

Conclusion

The Complainant’s position is clear. His role no longer exists on foot of the relocation of business operations. The alternative location put forward by the Respondent is not a suitable or reasonable alternative. The Complainant acted entirely reasonably in declining the offer of an alternative role. Therefore, the Complainant is entitled to a redundancy payment.

There was no appearance by, or on behalf of, the Respondent at the adjudication hearing.

On 30th March 2021, the Respondent furnished a written submission. The gist of it in relation to redundancy is as follows.

It is denied that the Complainant’s position was made redundant or that he was or is entitled to any redundancy payment as claimed or at all. The Complainant has refused to attend at work but he has not been dismissed and his work and position still remains available to him. Given his long absence from work however there is a limit to how long the position can be kept open as this is causing serious disruption, inconvenience and cost to the Respondent.

It is denied that there is any requirement that the Respondent is required to provide any proof of insolvency or inability to pay redundancy.

The Respondent submits that every other employee of the Respondent has relocated to the new site save for the Complainant and his brother, who is also bringing similar claims (which are also denied by the Respondent). 

The Respondent submits that it is simply the case that the Complainant did not wish to relocate as per his main terms and conditions of employment.

The Respondent submits that that this is simply an attempt by the Complainant to force the Respondent to make his position redundant so that he can claim, and be paid, a lump sum.

The relevant law

The Redundancy Payments Act, 1967 provides as follow.

7. General right to redundancy payment

(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 […], 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,

15. Disentitlement to redundancy payment for refusal to accept alternative employment

(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,

Section 7(2) of the Act stipulates that redundancy arises when an employer ceases business in the place of employment, as in the within case. However, in line with section 15(2) redundancy is not payable in cases where the employer makes an offer of a suitable alternative employment.

In 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 referred to “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”.

In Cosy Tots & Co Ltd. V Conn RPD219, the Labour Court held as follows:

“In considering the question of suitability, the issue of location has to be taken into account by the Court. It is notable that s. 7(2) of the Act refers specifically to an employer ceasing to carry on work in the place of employment. In considering this question, the Court has to have regard to the particular circumstance of each case.”

I accept the Complainant’s uncontested evidence that, due to the Respondent’s relocation, the length of time he would be required to spend commuting from his home to work would increase radically from 2-3 minutes to approximately 1 hour. I, therefore, am of the view that it was reasonable for the Complainant not to consider the offer made by the Respondent as one that constituted suitable alternative employment.

Consequently, I find that the Complainant was made redundant and is entitled to a redundancy payment under the Act.

The following criteria apply:

Date of commencement: 20th March 2006 date of termination: 4th January 2021 Gross weekly remuneration: €626.44

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

Regarding the Complainant’s claim that he did not receive proof of his employer’s inability to pay redundancy, there is no provision in the Act for an Adjudication Officer to hear such a claim

CA-00042785-006

I allow the Complainant’s appeal. I decide that the Complainant is entitled to a statutory redundancy lump sum under the Redundancy Payment Acts based on the following criteria: 

Date of commencement: 20th March 2006 date of termination: 4th January 2021 Gross weekly remuneration: €626.44.

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

CA-00042785-007

I have no jurisdiction to hear this complaint.

Redundancy – suitable alternative employment