Complainant

Respondent

Parties

Gerard McEvoy

Last Bus Limited

Representatives

Maurice Osborne, BL

 Dawson O'Toole Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00045029-001

05/07/2021

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

CA-00045029-002

05/07/2021

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

CA-00044294-001

24/05/2021

The complainant commenced employment as a bus driver at Dublin Airport’s Quick Park car park in April 2007.  On March 17th 2020, arising from the fall in passenger numbers at the airport at the start of the Covid-19 pandemic, he was placed on temporary lay-off. 

On April 6th 2021, the operations manager wrote to the complainant to advise him that Quick Park had ceased trading and that he was required to continue working for the company driving buses for a sister company, Citibus, on the Portlaoise to Dublin Airport routes.  Details of gross and net earnings on the new route were included in the correspondence with an amended contract of employment.  In a follow-up email to the letter of March 17th, one of the six employees was informed that his service would be continuous from the date that he joined Last Bus Limited.  He was also informed that his job was not redundant and that he was not entitled to redundancy pay.  The complainant did not take up the offer of alternative work, because, in his view, the offer was for a job with a different company on significantly different terms and conditions.  On May 24th 2021, he submitted a complaint to the WRC, claiming an entitlement to redundancy pay.  He also claimed that he had not been paid holiday and public holiday pay during the period of lay-off.

CA-00045029-001 and -002:  Complaints under the Organisation of Working Time Act

The complainant submitted that he was not paid his entitlement to pay in lieu of holidays and public holidays when he was laid off between March 2020 and May 2021.

CA-00045029-003:  Complaint under the Redundancy Payments Act

It is the complainant’s case that, on April 6th 2021, the respondent proposed that he enter into a new contractual relationship with a separate legal entity, Citibus, on different terms and conditions compared to his original contract of employment.  The changes involved a change in the name of the employer, a different job title, place, hours of work and pay.  A new employee handbook was also referred to and there was a proposal to change the sick pay scheme policy.  The complainant was also required to wear a different uniform.  It is the complainant’s case that the terms associated with the alternative job were so significantly different to his original job that his original job was redundant.  He did not take up the offer of alternative employment and he believes that his decision not to do so was reasonable in light of the significant differences between the job on offer and his original job.

The proposed changes to his terms and conditions of employment were set out in the complainant’s submission:

Name of Employer

A copy of the complainant’s contract of employment was included in the book of documents submitted on his behalf by Mr O’Toole.  The contract states that the name of the employer is Last Bus Limited, C/O Quick Park, Old Airport Road, Cloghran, County Dublin.  He claims that, on April 6th 2021, he was informed that his new employer would be Citibus Limited.

Job Title

In his original contract, the complainant is given the title, “bus driver,” whereas in the proposed contract, he is to be employed as a “coach driver” on a route operated by Dublin Coach.

Place of Work

The complainant’s original place of work was the Old Airport Road, Cloghran, County Dublin.  His new contract proposed what he argued was a fundamental change when it stated that he “will be required to work on any route according to the needs of the business or any depot required by management.”

Hours of Work

In his original contract, the complainant was required to work 40 hours a week from Monday to Sunday in accordance with the roster.  No hours were given in the new contract, which, he argued, was highly unsatisfactory and provided him with no contractual entitlement to basic hours of work.  It was proposed to change the working week to Friday to Thursday.  There was also a suggestion that shifts would vary at the beginning and that they would move to a fixed or rolling roster as positions became available.

Pay

The complainant had been earning €18 per hour until he was laid off in March 2020.  The new contract proposed that he would be paid “per trip,” with no indication of the specific rate per trip.  The new contract refers to a subsistence allowance which was not previously a component of the complainant’s remuneration.

Employee Handbook

Terms and conditions concerning annual leave, public holidays and disciplinary procedures were set out in a new handbook; however, the complainant was not provided with a copy of this handbook.  On the date of the hearing of this complaint, Mr Osborne said that the affected employees had been issued with a copy of the handbook.

Sick Pay

Under his new contract, the complainant was required to provide a certificate from his doctor if he was absent for two consecutive days.  This onerous term was not a requirement of his original contract.

Uniform

The new contract provides that the complainant must wear a uniform and that it costs €75.  The cost  was to be refunded to the employer if the complainant left his job within six months of commencement.

Pension

No information was provided about whether the terms of the Pay Related Savings Account (PRSA) was the same in the new contract compared to the complainant’s original contract.

At the hearing, Mr Osborne said that the complainant did not resign, but that he is entitled to consider himself dismissed and to conclude that his job is redundant.  His dismissal arose out of his job becoming redundant.  He said that the reason that the complainant and his colleagues did not apply for redundancy pay was not because they were not brought back to work, but, because the offer of an alternative job was so different to their original jobs.  He said that the name “Citibus” on the new contract gave the impression that they were transferring to a new employer.  The letters of April 6th 2021 proposed moving the jobs to a different location and suggested that they would be employed on zero hours contracts which are illegal.

Relevant Case Law

Mr Osborne referred to several legal precedents in support of the complainants’ position:

Broderick v Dorothea Fashions Limited, RPD 11/1978

Earley v Floorstyle Contracts Limited, RPD 382/2003

Heavey v Casey Doors, RPD 1040/2013

Cinders Limited v Byrne, RPD 11/2018

L Connaughton and Sons Limited v Healy, RPD 5/2020

Sleczka v Skrzat, RPD 8/2020

Summeridge v Byrne, RPD 211

Each of the precedents listed above are examples of a finding that an employee is entitled to a redundancy payment where the place of work has changed.

In the decision of the Labour Court in November 2021, Hartway Trading Limited and Joseph McGrath, RPD 2119, the complainant was found to be entitled to a redundancy payment in circumstances where he was offered an alternative job with a company associated with his original employer.

Evidence of the Complainant, Mr McEvoy

In his sworn evidence, Mr McEvoy said that, before he was laid off in March 2020, he worked the same shift for 10 years at the Quick Park car park.  He worked from 2.00pm until 12.00 midnight from Wednesday to Saturday.  This comprised a total of 36 hours of working time, and 40 hours inclusive of breaks.  He said that his job was to drive back and forth from the car park to the airport and that the journey took about 10 minutes.  He waited at the airport to pick up passengers and he did roughly two trips every hour.  He said that he had little engagement with the passengers.

Mr McEvoy said that he used to work with Bus Éireann and that he found dealing with passengers and cash very stressful.  He also had to drive in heavy traffic, and the trips involved sitting for three or four hours.  In the new role that was proposed by the company, he would have to drive 30 kilometres from the city centre and his routes would be governed by a tachograph. 

Mr McEvoy said that, in the new job, there would have been a variation in his wages and, rather than an hourly rate, he would have been paid €150 per day.  He said that he would have had a lot more earnings with Quick Park.  

Mr McEvoy said that he wasn’t impressed with the job offer.  He said that Citibus is a different company and that he and his colleagues knew a lot about the Dublin Coach operator and they were not attracted to the company.  He referred to a move by that company to “bendy buses” and he said that they were harder to drive compared to the Quick Park buses.  He said that “the company was not for me” and that it was not a job he wanted.

Mr McEvoy said that he was given three days to reply to the offer of the alternative job, and he thought that, if he didn’t reply, the offer was gone.

Cross-examining of Mr McEvoy

Responding to questions from Mr O’Toole, Mr McEvoy said that he wasn’t concerned about the distance between Dublin and Portlaoise, but he said that he wasn’t offered a particular route. 

Mr O’Toole said that the new job did not involve dealing with cash, and Mr McEvoy said that he didn’t know if he would have to deal with cash.  He said that he did not contact the company to look for clarification about the terms and conditions on offer.  He agreed that the letter from his solicitor on May 5th 2021 was the first enquiry made on his behalf.  He said that he was aware that his solicitor asked for an informal meeting with the company, but Mr O’Toole pointed out that, the letter of May 5th was followed by a response to the company’s letter of May 19th confirming that complaints had been lodged with the WRC.

At the conclusion of his evidence, in response to questions from me, Mr McEvoy said that he didn’t want to work for Dublin Coach.  He said that he was concerned about the conditions, rosters, pay, the short turnaround time and not many breaks.  He said that he is now retired.

CA-00045029-001 and -002:  Complaints under the Organisation of Working Time Act

On behalf of the respondent, Mr O’Toole accepted that the complainant is entitled to his annual leave and public holiday entitlements which were outstanding up to when he was laid off in March 2020.  In the book of documents submitted by the respondent at the hearing, details of the complainant’s outstanding entitlement to annual leave and public holidays were set out.  The document takes account of the complainant’s entitlement to public holidays which accrued during the first 13 weeks of lay-off after March 17th 2020.  The respondent accepts that the complainant is due to be paid €442.89, in respect of wages for 3.5 days of outstanding annual leave and public holidays. 

CA-00045029-003:  Complaint under the Redundancy Payments Act

In his submission, Mr O’Toole said that the operations manager of Last Bus Limited, Mr Gerry Lynch, wrote to the complainant on April 6th 2021 to advise him that Quick Park had ceased trading and that he would no longer be required to drive buses at the Quick Park car park.  He was informed that he would be required to continue working for the company, driving buses on the Dublin Coach service from Portlaoise to Dublin Airport, working out of Dublin Airport or Western Industrial Estate.  Dublin Coach is operated by Citibus, which is a sister company of Last Bus Limited.  A copy of the letter issued to the complainant was included in the respondent’s book of documents.  Attached to the letter was a table setting out gross and net earnings for employees with single and married tax credits, with comparisons between the weekly earnings in Quick Park / Last Bus and Dublin Coach / Citibus.  A sample of a new contract of employment was also provided, to show the differences in terms and conditions of employment relating to both jobs.  The respondent’s submission states that this was to assist the complainant in the consultation process.  The letter concluded with the sentence, “We look forward to consulting with you further on the matter.”

The complainant’s original contract provides that his terms and conditions may be amended, “following consultation with you, taking into account the requirements of the business and legislation governing your employment.”

Mr O’Toole submitted that, contrary to what was alleged by the complainant, he was not required to enter into a new contractual relationship with Citibus, but he was being asked to continue working for Last Bus Limited, as a driver on the Dublin Coach service.  His length of service from the date that he commenced with Last Bus Limited would be recognised.

On May 5th 2021, the complainant’s solicitor wrote to the respondent and stated that it was the complainant’s understanding that he was being asked to work in a new role for a different legal entity.  The respondent replied stating that they were offering the complainant an alternative role with Last Bus Limited and not a different legal entity.  They said that they were entitled to amend the complainant’s terms and condition of employment and that they wanted to consult with him and his colleagues on the matter.  The complainant did not respond to the offer of consultation and, on May 31st 2021, his solicitor wrote to the respondent advising them that, on behalf of six employees, they had submitted complaints to the WRC under the Redundancy Payments Act (“the RP Act.”

It is the respondent’s position that its offer to re-engage the complainant under a new contract of employment constitutes an offer of suitable employment, which the complainant has refused.  For this reason, he is not entitled to a redundancy payment.

In response to Mr Osborne’s submission, Mr O’Toole said that the complainant was not offered a zero hours contract, but a contract for five days a week at a daily rate of €150.  While the payroll reference period would change, there was never any doubt that the complainant was offered 40 hours work every week.  In his submission, he addressed each of the concerns raised by the complainant regarding the alternative job offer:

Name of Employer

The offer of an alternative job was an offer to continue to work with Last Bus Limited.

Job Title

In his original contract, the complainant is given the title, “bus driver,” whereas in the proposed contract, he is to be employed as a “coach driver.”  When he was a driver with Quick Park, the complainant drove articulated and rigid buses and he would have been expected to do the same in his new job.  This was neither a fundamental or an onerous change to his condition of employment.

Place of Work

In his new role, the complainant was expected to be based primarily at Dublin Airport.  In his contract of employment, there is a provision that he would “normally be required to work from Old Airport Road, Cloghran, County Dublin.”  The respondent’s position is that the complainant’s place of work could be changed, depending on the needs of the business and that the change from Dublin Airport to Western Industrial Estate is not a fundamental change to his conditions of employment.

Hours of Work

In his original contract, the complainant was required to work 40 hours a week from Monday to Sunday in accordance with the roster.  His new contract provided that he would be rostered from Friday to Thursday “in accordance with the Organisation of Working Time Act 1997.”  The only change to the proposed contract was the change in the working week and the removal of the 40 hours per week specification.

Pay

The complainant had been earning €18 per hour until he was laid off in March 2020.  The new contract proposed that he would be paid €150 per day or €750 per week for five days, which is the same number of days in his original contract.  In the new contract, the complainant would have been entitled to a weekly subsistence allowance of €168.05.  The table which provided a comparison of gross and net pay, which included the subsistence allowance was provided to the complainant on April 6th 2021 and showed that his gross and net pay would have been increased slightly in the alternative job.  If he had accepted the new job, he would have continued to be paid weekly and in arrears.

Employee Handbook

The employee handbook referred to in the complainant’s original handbook is the same as the handbook referred to in the proposed new contract.  The complainant did not engage in consultation on his new terms and conditions and instead, prematurely submitted a complaint to the WRC.  If they had consulted with their employer, any issues in relation to the handbook could have been resolved.

Sick Pay

The only change in relation to sick pay is that the complainant would have been required to provide a certificate from his doctor if he was absent for two consecutive days.  The respondent’s position is that, while this is a change in a condition of the sick pay scheme, it is a standard requirement and not a fundamental change to the complainant’s terms and conditions.

Uniform

The respondent’s position on the refund of the cost of the uniform is that this is a standard condition in the driving industry and is not an onerous or fundamental change.

Pension

The PRSA in the new contract was the same as the PRSA in the complainant’s original contract.  The respondent’s position is that the complainant could have sought clarification regarding this issue. 

Mr O’Toole said that it cannot be the case that an invitation to consult about a new job on different terms and conditions was a breach of contract.  He said that the complainant did not avail of the opportunity to consult.  He also said that the complainant and his colleagues were highly regarded employees and the respondent would still like them to come back to work.  They would be employed by Last Bus Limited, the same employer as previously.  Mr O’Toole reiterated that the complainant was not offered a job by Citibus.

Evidence of the Former Operation Manager, Mr Gerry Lynch

In his evidence, the retired operations manager, Mr Lynch, said that Last Bus Limited is a sister company of Citibus, which trades as “Dublin Coach.”  He said that, before the Covid-19 pandemic, the company employed 210 drivers.  On the date of this hearing on May 12th 2022, they employed 140 drivers.  They currently have 20 open driver vacancies. 

Mr Lynch said that Last Bus Limited had a contract to provide drivers to Quick Park, a car park at Dublin Airport.  Quick Park went into liquidation in early 2021, when the lease of the site for the car park was not renewed.

Mr Lynch said that the rosters for the Quick Park drivers are based on a 9.5 hour shift.  Quick Park drivers did not have to comply with tachographs because the job is exempt from tachograph recording.  He said that the proposal was to offer the former Quick Park drivers jobs on the Portlaoise – Dublin Airport service, and for them to be based at Dublin Airport.  He said that the company had an arrangement with the Dublin Airport Authority to pick up passengers at Dublin Airport and, at the end of the day, they could park the bus in the lay-over car park.  The company had also succeeded in winning a license for the Clongriffen to Dublin Airport route.  Mr Lynch outlined the roster changes that would apply to the drivers.  They would be required to work a six-week roster, which would be notified to them in advance.

Cross-examining of Mr Lynch

Mr Lynch said that the company wanted all their drivers to return to work after the lay-off.  As soon as they were informed that the Quick Park was in liquidation, he said that the company started to contact the drivers.  When the Covid-19 restrictions began to be lifted in 2021, the National Transport Authority approached the company to ask them to operate buses on certain routes.  On April 6th 2021, Mr Lynch said that they wrote to the drivers offering them an alternative to their jobs with Quick Park and provided them with sample calculations of wages.  The objective was to show them how their hourly rate compared to the daily / trip rate.   

Mr Lynch said that the statement that employees would be required to work on any route was from the sample contract.  He said that the company expected the drivers to come back to them to discuss the new terms.  He said that they knew the hourly rate and the place of work would be an issue.  He said that Western Industrial Estate was the base for the buses, but he said that the Dublin Airport to Portlaoise service was always operated out of Dublin Airport.  The service started and finished at Dublin Airport.

Mr Lynch said that, apart from one driver, “no one engaged with us.”  Mr Osborne asked Mr Lynch if it would not have been reasonable for the company to follow up the letter of April 6th?  He said that, at no stage did they decide not to engage.  They received notification from the WRC on May 24th 2021.  He said that, in the letter of April 6th, the drivers were “invited to come in to talk to us.”

Mr Lynch said that the complainant and his colleagues were shown the list of routes operated by Dublin Coach.  He said that, when the company started to resume operating when the Covid-19 restrictions were lifted, there were a limited number of routes on the N7, M9 and the M7.    

CA-00045029-001 and -002:  Complaints under the Organisation of Working Time Act

At the hearing, the respondent acknowledged that the complainant had outstanding entitlements under section 21 and 23 of the Organisation of Working Time Act 1997, regarding pay for annual leave at the termination of employment and pay for public holidays during lay-off.  Annual leave does not accrue during lay-off; however, in accordance with section 21 and schedule 3 of the Organisation of Working Time Act, an employee who is laid off from work is entitled to the benefit of a public holiday that falls during the first 13 weeks of lay-off. 

CA-00045029-003:  Complaint under the Redundancy Payments Act

The Relevant Law

Section 15(1) of the RP Act provides that an employee will not be entitled to a redundancy payment if their employer offers to renew their contract or to offer them a new contract in the same “capacity” and on terms that are not different from their original job.  Section 15(2) addresses the possibility that an employer may offer an employee whose job is redundant a job in a different capacity and on terms that “differ wholly or in part” from their original contract:

(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.

To avoid the termination of his employment, the complainant was offered a job that he was capable of doing and for which he was professionally qualified.  It is the complainant’s position that the alternative job was not suitable and that the changes to his terms and conditions of employment were not acceptable.  At the hearing on May 12th 2022, he had not taken up alternative employment and he said that he had retired.

The Offer of a Suitable Alternative Job

To reach a conclusion on this matter, I am required to consider the suitability of the job offered to the complainant, and then to consider if it was reasonable for him to refuse the offer.  An employee faced with the elimination of a job they have been happily doing for a number of years is in a different predicament to an employer seeking to utilise that employee’s skills and experience for the benefit of the business.  The employee considers his position from a personal and subjective standpoint, whereas, the employer looks at the situation objectively.  In its decision in the case of Garrett Brown and Isabella Di Simo[1], the Labour Court remarked on the two sides of this dynamic:

“In determining the within appeal, the Court is required to consider firstly the suitability of the offer of alternative employment made by the Respondent in writing on 21st November 2018 to the Complainant, and, secondly, whether or not the Complainant’s decision to refuse the offer was reasonable in all the circumstances.  In Cambridge & District Co-operative Society Limited v Ruse [1993] I.R.L.R. 156, the English EAT, when considering the similarly worded provisions of the British legislation, 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.’”

The complainant was offered the opportunity to continue to work for his employer, but assigned to a different client, because the operator of the Quick Park car park went into liquidation.  He was required to move to a job driving for Dublin Coach, on the route from Dublin Airport to Portlaoise.  He would continue to be based at Dublin Airport, because the route started and finished there.  On this basis, I am satisfied that he was not required to change his place of work.  I am also satisfied that he would continue to work for the same employer, but assigned to Dublin Coach, in the same manner as he had been assigned to Quick Park.  As the complainant’s place of work would not change, and, as his employer would not change, the precedents referred to by Mr Osborne are not useful.

While the complainant argued that there were “significant and onerous” changes proposed by his employer, it is clear to me that there were two minor changes proposed; the first was that, in the event of leaving the company within six months, he would have to reimburse his employer €75.00 for the cost of his uniform.  The second change was the requirement to submit a medical cert after two days of absence.  It is my view that these were insignificant changes and I also think that, if the complainant had engaged in consultation with his former employer, it is likely that these requirements could have been amended or addressed to the satisfaction of both sides.

Section 15(2) of the RP Act provides that a suitable job may differ “wholly or in part” from a job that has become redundant.  I have considered the evidence and, it is apparent to me that the most significant change to the complainant’s job would have been the difference between driving to and from the Quick Park car park to the airport around two times every hour, to doing two or more trips to and from the airport to Portlaoise every day.  There can be no argument that the route he was required to drive in the alternative job was different to the route he drove for several years.  However, from the perspective of the complainant’s qualifications, skills and his experience, it is my view that, as an alternative to redundancy, the job on offer was a suitable job and, apart from very minor differences, his pay and conditions would not have changed.

In every redundancy situation, it is incumbent on an employer to avoid dismissing an employee, and to attempt to find a suitable alternative to the job that has been eliminated.  This objective is supported by the (1971 and 1979) insertions at subsections (2A) and (2B) of section 15 which provide for a trial period for the employee to consider if the alternative job is suitable:

“(2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section.

“(2B) Where -

“(a) an employee's remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and

(b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer, such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.”

It is clear from these insertions that the legislature intends that, before reaching a decision on redundancy, an employee should be permitted to try out a different job.  It is regrettable that the respondent did not make a greater effort to encourage the complainant to take up the alternative job, even on a trial basis.  I appreciate that the difficulties associated with face-to-face meetings at the time may have hindered discussions and the submission of this complaint to the WRC on May 24th 2021 seems to have put an end to the possibility of a return to work.

Conclusion

I am satisfied that, as an alternative to his job that was redundant, the complainant was offered a suitable job for which he was qualified and capable.  I am further satisfied that there were two changes proposed to his terms and conditions which were not significant.  It is my view that it was unreasonable for the complainant to refuse the offer of the alternative job, or, at the very least, to try it out for a few weeks.  I find therefore, that, in accordance with section 15(2) of the RP Act, he is not entitled to a redundancy payment.

Finally, it is my view that the complainant was not dismissed, but that he failed to return to work after a period of lay-off.  Taking my authority from the decision of the Labour Court in Co-Op Agri Source Limited and Patricia Moran[2], I must find that, as the complainant was not dismissed, he is not entitled to claim a redundancy payment.    

CA-00045029-001 and -002:  Complaints under the Organisation of Working Time Act

The complainant’s claim for pay for annual leave during the period of lay-off from March 17th 2020 is not well founded.  The respondent has conceded that the complainant is entitled to 3.5 days’ pay in respect of untaken annual leave up to the date that he was laid off in March 2020, and the public holidays that fell in the first 13 weeks of lay-off.  In accordance with the calculations provided at the hearing of this complaint, I direct the respondent to pay the complainant €442.89.

CA-00045029-003:  Complaint under the Redundancy Payments Act

For the reasons I have set out above, I decide that this complaint is not well founded.

Redundancy, alternative job, lay-off